Frustrated by the federal stalemate on illegal immigration, cities and states have spent the last few years crafting their own curbs on unlawful residency. The most publicized of these was in Arizona, which ordered police with “reasonable suspicion” to check people’s immigration status (and went further last week, introducing a bill that aims to deny citizenship to children born in the state whose parents are there without permission). Lawmakers have worked aggressively as well in Nebraska, Texas, Missouri, Pennsylvania, and Idaho, among other states, punishing schools that educate undocumented immigrants, landlords who rent to them, and businesses that hire them.
What unites these measures, however, is more than a hardline approach to border control. It’s their ties to one man: Kris Kobach, a Kansas-raised former law professor who has emerged as the intellectual architect of the right’s fight against illegal immigration. The 44-year-old has authored, aided, or officially defended almost every controversial stance in the country, beginning with his work as chief immigration adviser in John Ashcroft’s Justice Department.
This year may be Kobach’s most influential yet. From a base in Kansas, where he is the newly seated secretary of state, Kobach will help Arizona defend his laws against all comers. Both the Justice Department and American Civil Liberties Union have sued the state, claiming that immigration is a federal matter. He’ll also counsel a dozen or so states that are considering copycat laws and a coordinated assault on birthright citizenship. And he’ll litigate at least four ongoing immigration-related cases, including lawsuits against California (for extending in-state college-tuition rates to the undocumented) and San Francisco (for failing to notify immigration authorities before a thrice-arrested alien allegedly murdered three people). It’s a “legal jihad,” according to a new report by the Southern Poverty Law Center (SPLC), which calls the path he’s blazing “a trail of tears.”
Kobach’s contagious ideas and all-American good looks have made him a fixture on Fox News. But he’s no wingnut. His path to public life is so pedigreed it makes John Kerry seem rough-hewn. Kobach earned top undergrad honors at Harvard; won a Marshall scholarship to Oxford, where he picked up a political-science doctorate; got a law degree from Yale, where he was an editor of The Yale Law Journal; and did missionary work in Africa. He even won two Masters national rowing titles in the men’s double scull.
In the heart of East Coast liberalism, Kobach’s conservatism actually deepened, say the people close to him, including his mother, high-school debate coach, friends, and colleagues—including Ashcroft, with whom Kobach hiked and bodysurfed. The only son of a car dealer and homemaker—churchgoing Lutherans who also believed in law and order—Kobach is of French, German, and Nordic heritage, his ancestors passing through Ellis Island in the late 1800s (“It was legal,” promises his mother, Janice). At Harvard, he led the Republican Club and gravitated toward conservative lion Samuel Huntington, who became an early mentor. But it was 9/11, and his realization that several hijackers had been in the country illegally, that crystallized for him the importance of border security as a way to protect both lives and livelihoods. Kobach authored the much-decried fingerprint program for Muslims and Middle Easterners in the U.S. “American sovereignty is at stake,” he tells NEWSWEEK. “You can’t have open immigration and a welfare state.”
In the absence of congressional action, Kobach is after what he says is the best alternative: “People often see federal immigration policy as a dichotomy between amnesty and deportation. But the most rational approach is a third one: you ratchet up the enforcement so that people make their own decisions to start following the law.” In other words, take away the reasons people come to America illegally—education, work, housing, and, yes, citizenship for their kids—and, Kobach says, they will “self-deport.”
Though they have inspired mass protest, Kobach’s legal positions are tenable, even clever, say constitutional experts. He’s clarifying the fuzzy line between state and federal power, says Peter Schuck, a Yale law professor. But civil-liberties groups and immigrant advocates bristle in response. Kobach is “of counsel” to the Federation for American Immigration Reform, which the SPLC calls an anti-Latino “hate group,” and endorsed by firebrands like Sheriff Joe Arpaio of Maricopa County, Ariz., fueling accusations that Kobach is less Ivy League scholar than major-league bigot. “I don’t have a racist or nativist bone in my body,” he says, adding with a wink that he gets why people might say so. “In a legal debate, when your opponents turn to name-calling, it’s a good sign you’ve already won.”