The Man Behind Arizona's Harsh Immigration Law Is Coming to Your State

When Arizona passed a law that handed local police unprecedented authority to investigate and arrest suspected illegal immigrants, the state ignited a firestorm in a midterm election year. And for Kris Kobach, the former Bush administration lawyer who helped draft the legislation, the crackdown in Arizona is just the beginning.

A telegenic law professor with stellar academic credentials—Harvard undergrad, Yale Law School—Kobach has been the brains behind similarly tough local-level immigration measures and legal actions across the country. And he says he's discussing with officials about whether measures similar to the Arizona law could be passed elsewhere. "I have been contacted by legislators in other states…with questions about the Arizona statutes," Kobach says in an interview. He won't reveal where most of these inquiries were from, but said he was talking to state legislators in Kansas—where he's also running for secretary of state this fall. Already, state and national lawmakers in Oklahoma, Ohio, North Carolina, and Georgia have vowed to pass copycat measures.

Kobach denies that he's the mastermind behind any of the anti-immigration laws he's drafted or defended. Rather, he insists he simply assists officials who are already committed to tougher enforcement policies. "I did not generate the motivation to pass the law...I am merely the attorney who comes in, refines, and drafts their statutes," he says.

But advocates on both sides of the immigration debate agree that his influence has been far-reaching. Rosemary Jenks of NumbersUSA, an anti-immigration group, calls Kobach "instrumental in helping states and localities deal with the federal government's authority." Vivek Mahotra, a lawyer from the American Civil Liberties Union, which has frequently tussled with Kobach in court, says, "What Kris Kobach has done as a lawyer is really gone out to localities around the country and really used them as experimental laboratories for pushing questionable legal theories about how far states and local governments can go."

Kobach, 44, has spent much of his professional life developing the legal framework that a growing number of state and local officials have used to justify anti-immigration proposals. A rising star in the GOP establishment, Kobach—a professor at the University of Missouri-Kansas City Law School—joined John Ashcroft's Justice Department days before 9/11. Over the next two years, he helped create a program that required all visiting citizens from 25 mostly Arab countries to be fingerprinted and monitored—a policy that critics said amounted to racial profiling.

During these years, Kobach advanced an idea that had long been circulating in conservative legal circles: that local and state officials have the "inherent authority" to enforce federal immigration laws. This unorthodox notion bucked the prevailing view—long held by both Republican and Democratic administrations—that the federal government has principal jurisdiction over immigration under the Supremacy Clause of the Constitution. If local and state governments were to strike out on their own, they could undermine federal efforts, create the potential for draconian crackdowns, and detract from law enforcement efforts by discouraging immigrants from cooperating with police, critics argue. In 2002, however, Ashcroft's Office of Legal Counsel issued a memo, which Kobach contributed to, supporting the "inherent authority" theory.

In the years since, state and local officials have deployed that rationale to devise their own anti-immigration policies without direction from the federal government—often with help from Kobach himself. After leaving the administration in 2003, Kobach went on to work with a number of local governments and officials around the country on immigration matters—sometimes operating independently and sometimes working with groups like the Immigration Reform Law Institute. IRLI was founded by the Federation for American Immigration Reform (FAIR), a group that aims to reduce both illegal and legal immigration. FAIR has been criticized for its ties to controversial activist John Tanton (who once asked, “As Whites see their power and control over their lives declining, will they simply go quietly into the night?”) and the Pioneer Fund, which has its origins in the eugenics movement. Calling the charges against FAIR "an absurd smear of six degrees of separation," Kobach has disavowed any connections to hardline nativists.