Kris Kobach Tells What’s really in SB 1070

KOBACH: Arizona acts as Washington dithers

Attacks on new immigration law based on myths

By Kris W. Kobach

On April 23, Arizona Gov. Jan Brewer signed into law S.B. 1070,
sponsored by state Sen. Russell Pearce. The law makes it a state crime
for an alien to commit certain federal immigration violations while in
Arizona. However, based on the hyperventilating reaction of the open-
borders left, one would think Arizona had constructed a police state.

Protesters took to the streets in Arizona displaying Mexican flags,
chanting “Si se puede” and carrying signs saying, “Legalize Arizona.”
Media hound Al Sharpton declared that he would organize “freedom
walkers” to challenge the law. Not wanting to miss a chance to play to
his liberal base, even President Obama got into the action. He called
the Arizona law “misguided” and said that it threatens to “undermine
basic notions of fairness that we cherish as Americans.”

Mr. Obama’s reaction was true to form. Just as with the Cambridge,
Mass., arrest fiasco last year, he rushed to the microphone without
knowing the facts in order to stir up and capitalize on accusations of
racial profiling.

However, far from inviting racial profiling, the Arizona law actually
makes racial profiling less likely. But that doesn’t fit the story the
left would like to tell. There are numerous inaccuracies in what
critics of the law are saying, the most prominent of which are the
following.

Myth No. 1: The law requires aliens to carry identification that they
weren’t already required to carry. On the contrary, the law simply
penalizes aliens who fail to carry the registration documents that
federal law already requires them to keep on their person. These
federal crimes (8 United States Code Section 1304(a) or 1306(e)) have
been around since 1940. The Arizona law simply adds a layer of state
penalty to what already was a crime under federal law.

Ironically, the open-borders crowd has for years insisted that we use
the term “undocumented” when referring to illegal aliens. Now, when a
state takes seriously the documentation requirements of federal law,
that crowd becomes apoplectic.

As for U.S. citizens, the law does not require them to carry any
identification whatsoever. Indeed, the law cannot possibly be applied
against U.S. citizens; only an alien can be found guilty under the
Arizona statute.

Myth No. 2: The law will encourage racial profiling. The terms of the
act make clear that such profiling cannot occur. Section 2 provides
that a law enforcement official “may not solely consider race, color,
or national origin” in making any stops or determining an alien’s
immigration status. In addition, all of the normal Fourth Amendment
protections against racial profiling still apply.

Moreover, the law actually reduces the likelihood of racial profiling
by forcing police officers to contact the federal government to verify
a person’s immigration status when they suspect a person is an illegal
alien. It already was permissible for police officers across the
country to make arrests for violations of federal immigration law
where reasonable suspicion existed that a violation had occurred. Now,
in Arizona, officers will have to make a phone call to Immigration and
Customs Enforcement’s (ICE) 24/7 hot line to confirm that any aliens
in their custody really are present unlawfully. Officers can no longer
proceed based solely on their own assessment of a person’s immigration
status. In this way, the Arizona law takes any consideration of race
out of the equation – strengthening the protections against racial
profiling.

Myth No. 3: The law will require Arizona police officers to stop and
question people. Here again, critics of the law are failing to read it
carefully. The law only kicks in when a police officer already has
made a “lawful contact” with a person, such as stopping him for
breaking another law. The most likely contact is during the issuance
of a speeding ticket. The law does not require the officer to begin
questioning a person about his immigration status or to do anything
the officer would not otherwise do.

Only after a stop is made, and subsequently the officer develops
reasonable suspicion on his own that an immigration law has been
violated, is any obligation imposed. At that point, the officer is
required to call ICE to confirm whether the person is an illegal
alien. Are critics seriously suggesting that local law enforcement
officers should ignore the violations of federal law that they see at
that point?

In sum, the law doesn’t make any radical changes. Rather, it is a
reasonable step that gives Arizona police officers another tool in
their toolbox when they come into contact with illegal aliens during
their normal law enforcement duties. It also prohibits Arizona cities
from implementing sanctuary policies that prevent their officers from
contacting ICE.

Arizona police officers need the tool that S.B. 1070 provides. Arizona
is at ground zero with respect to illegal immigration and its criminal
consequences. Arizona has witnessed hundreds of violent crimes
committed by illegal aliens. Most recently, the brutal murder of
rancher Robert Krentz on his own property by a suspected illegal alien
shocked all Americans. Phoenix is now the kidnapping capital of North
America and the hub of human smuggling into the United States. Three
Phoenix police officers have been shot by illegal aliens since 1999.

Arizona is in a state of crisis. No wonder 70 percent of Arizonans
support S.B. 1070, with rank-and-file police associations voicing
their approval as well. Meanwhile, Mr. Obama accuses Arizonans of
having racist motivations and declares his intention to push for an
amnesty – which would only trigger an even larger flood of illegal
immigration.

Will Mr. Obama recognize his mistake and hold a beer summit this time
to atone for his rash accusations? I’m not holding my breath.

Kris W. Kobach is professor of law at the University of Missouri at
Kansas City. He was Attorney General John Ashcroft’s chief adviser on
immigration law and border security and was one of the principal
drafters of Arizona S.B. 1070.