More Than a Matter of Opinion

In a New York Times op-ed Kris Kobach says we're wrong on Arizona. He's got it half right.

By Daisy Hernandez Apr 29, 2010

The New York Times published an op-ed yesterday by Mr. Kris. W. Kobach, who helped write the new anti-immigrant law in Arizona.

Mr. Kobach was helpful enough to take the main arguments being made against the law and share his interpretations. We can only assume that his points will form the basis for legal arguments made when the lawsuits hit the courts.

So let’s take a look at each of Mr. Kobach’s legal defenses of the Arizona law:

Arizona just passed a state law that complements the federal one. According to federal law, all immigrants have to carry their papeles. Mr. Kobach is right on this. The federal law is flawed. It creates a two-tier system of humanity in this country–citizens and noncitizens–and does nothing to acknowledge that capital is allowed to move across borders while common, decent people are harassed, demonized and locked up like animals. Where Arizona had an opportunity to say, "Let’s make state laws that are decent and humane and show those feds how wrong they are," state officials said, "Hey that flawed federal law is a great idea. The more hate the merrier."

The courts have said reasonable suspicion is ok. Mr. Kobach points out that he didn’t make up the notion of reasonable suspicion and that courts have given cops the go ahead in this matter. That’s right. Just ask any Black man in New Jersey driving a Mercedes and they’ll be happy to tell you how "reasonable suspicion" works in the real world. Of course, reasonable suspicion has been used to explain why Arab men are more likely to get stopped at airports. "Well, he was brown, his name is Hussein, he seemed unhappy when I asked him questions, and oh, yeah he was at the airport…"

Cops won’t be able to consider race as the only factor.
Mr. Kobach argues that the new law says police can’t ask you for ID just because you have brown skin. But they can ask you for ID because you have brown skin and are driving a beat up-Buick near a spot where daylaborers are picked up for work. Mr. Kobach’s argument is eerily similar to the old one that says, "We’re not denying you the right to vote because you’re Black–just because you’re Black and you can’t recite the entire Constitution."

A cop has to assume you’re undocumented if you don’t have a drivers’ license in your wallet. Arizona doesn’t require locals to walk, breathe and text with a driver’s license in their wallet. But, notes Mr. Kobach, if you can’t produce that ID, a cop is safe to presume that you’re undocumented. Why? Because, Mr. Kobach tells us, Arizona gives driver’s licenses to citizens and immigrants with legal status. Huh? Yes, his argument doesn’t make any sense. The reality is that in the new Arizona a Latino teenager forgets his wallet at home, gets pulled over by a cop, can’t remember his social security number, and ends up being handed over to immigration officials.

As long as Congress has said otherwise, a state can do whatever it wants. Mr. Kobach is right here. Immigration is a federal matter but states can pretty much do what they want as long as Congress hasn’t said it’s a no-no. Mr. Kobach cites here the fact that the U.S. Court of Appeals for the Ninth Circuit agreed that Arizona could punish people who knowingly hired undocumented workers. The law didn’t conflict with a federal one.

In sum, the Arizona law shows us when we fail to act at the federal level on immigration the doors are left open for the creation of police states where brown people are singled out to carry identification papers or face jail time. And all of this will be done legally–by state law.

It’s worth noting here that the Times identified Kobach as a law professor and chief adviser for former Attorney General John Ashcroft (you know the guy who put racial profiling into national play post-Sept.11). What the Times didn’t advertise, but Rachel Maddow has on her show, is that Kobach is a lawyer for the Immigration Reform Law Institute. This anti-immigrant group spends its time doing things like suing the Department of Homeland Security for letting computer nerds from India and Colombia work in the country for two years instead of one after college graduation.

As Maddow pointed out, this group is the legal arm for the anti-immigrant, and I’d say white supremacist group, FAIR, the Federation for American Immigration Reform. The group’s founder John Tanton has been rather vocal in his assessment of what’s at stake with immigration: white power. Directly from Tanton: "As whites see their power and control over their lives declining, will they simply go quietly into the night or will there be an explosion?"

With Arizona’s new law perhaps that explosion has begun.