Throwing the States off the Field

by Kris Kobach

On Wednesday, I published an article in the New York Post criticizing the ill-conceived HR-2164, introduced by Rep. Lamar Smith (R., Tex.). The bill, which was put together under the supervision of the pro-amnesty U.S. Chamber of Commerce, imposes a national E-Verify requirement (but one that is shot through with exceptions), in return for preempting the anti-illegal-immigration laws that have been passed in states such as Arizona, Alabama, Georgia, and Missouri. States would no longer be able to take any action against employers who knowingly hire unauthorized aliens. HR-2164 is a very poor bargain for anyone who believes in the enforcement of immigration laws, for the reasons that I explain in the article. I also have an article in the forthcoming issue of National Review that lays out in greater detail the crucial role of the states in immigration enforcement.

However, a debate has broken out here at NR Online between Mark Krikorian and Andrew McCarthy about my New York Post piece. Let me say at the outset that I have the greatest respect for both of these men. I am a great admirer of Andrew’s writing and legal analysis. And Mark has long fought the good fight for better enforcement of our immigration laws from his position at the helm of the Center for Immigration Studies. Mark is usually right on the money. But in this debate, it is Andrew who is in the right.

I’d like to make three points in response to Mark’s arguments.

First, Mark asserts that “only the federal government can make the determination that a firm has knowingly hired illegal aliens.” That assertion is incorrect as a matter of law. As the Supreme Court just held on May 26, in the case of Chamber of Commerce v. Whiting, states do have the authority to determine whether an employer has knowingly hired unauthorized aliens. Indeed, that was the central holding in the case. The states may also penalize such employers by stripping them of their business licenses, as the 2007 Legal Arizona Workers Act does. In the process of making such determinations, the state has to verify whether particular workers are unauthorized aliens or not. We drafted the Arizona law to require that these individual status verifications can be done only by contacting the federal government to get an answer. Mark claims that “preserving the states’ ability to pull a business license . . . is irrelevant if the feds aren’t making any determinations of that sort.” Here too he is incorrect. The feds are making determinations of that sort. That is because federal law requires them to do so. 8 USC 1373(c) requires the federal government to provide an answer whenever a state or local government asks about a particular alien’s immigration status. That provision of federal law is the linchpin of Arizona’s 2007 law, as well as Arizona’s SB-1070, which I also had a hand in drafting. All the other states’ laws on this subject are structured the same way.

Second, Mark states: “The bigger problem is a confusion about the purpose of the state laws on immigration. They are a means to an end — better federal enforcement everywhere. But those who’ve gotten deeply invested in the state-by-state approach have come to see it as an end in itself.” Mark is incorrect. The state laws that I have assisted in drafting and have defended in court — whether in Arizona, Alabama, Missouri, or elsewhere — were never conceived by their sponsors as a way of prodding the federal government to act. They were, as Andrew correctly points out, enacted to protect their citizens against very real problems. The state laws protect the states’ citizens against unfair competition for jobs, protect legal workers against wage depression caused by illegal labor, and protect taxpayers against the high fiscal burdens caused by illegal immigration.

Mark’s statement reflects a Washington-centric point of view — the notion that all the really important stuff happens in Congress, and that problems can truly be solved only by the federal government. But the states are not, as Mark suggests, mere proving grounds for future federal legislation. They are sovereign entities enacting real solutions to the specific illegal-immigration problems they face. If Congress has the wisdom to emulate state laws that work and wants to stand shoulder to shoulder with the states, that is fine; but it grossly disrespects the states for Congress to throw them off the field when the state laws are working.

Third, Mark quotes a statement that I made about Andrew’s previous article concerning the Supreme Court’s decision in Whiting. Andrew had written (correctly) that the Court did not revisit the basic question of whether the states have an independent role in regulating immigration, beyond the role permitted by Congress. I commented that that was “a battle that was lost in the 1870s. The question of Congress’s plenary authority to regulate immigration has been settled for more than a century.” My statement — from my perspective as a litigator who argues these cases in court — meant that we probably won’t see the Supreme Court revisit that question anytime soon. But there is plenty of room for the states to act nonetheless, as Whiting demonstrates, so we should celebrate Arizona’s victory and push ahead with state-level legislation. However, Mark supposes that I was making a different point: as he puts it, “the goal [of state laws] is to pressure Washington to have a better national policy overall.” That was not my point at all. The goal of the state laws is to encourage illegal aliens to self-deport. If Washington gets a clue and joins the states in this strategy of attrition through enforcement, so much the better. But the ideal enforcement environment is one in which both the states and the feds are on the field.

And let’s not forget one thing: The states are actually enforcing these laws, in sharp contrast to the federal government’s lax enforcement approach under President Obama. Arizona and Oklahoma witnessed massive numbers of self-deportations by illegal aliens after their laws were enacted. In Arizona’s case, more than 80,000 illegal aliens have left the state. And this week we learned that there is a shortage of some 11,000 agricultural workers in Georgia, due to the fact that that state’s new immigration law induced thousands of illegal aliens to leave. When was the last time the federal government caused illegal aliens to self-deport by the thousands?

Finally, let me point out what some Republicans seem to have forgotten regarding the election of 2010. There was an overriding theme that was embodied in the Tea Party movement: a rejection of Washington’s overreaching and a concomitant endorsement of states’ rights. If Republicans enact HR-2164 and throw the states off the field, it will be an act of enormous political obtuseness. It will show that those Republicans are just as out of touch with what is going on in the electorate as the Democrats were in 2010. For all of these reasons, unless the preemption language is removed from HR-2164, the bill must be defeated.


 – Kris W. Kobach, the Kansas secretary of state, coauthored the Arizona and Alabama immigration laws.

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