Posted on November 24, 2014

Conservative Expert on Immigration Law to Pursue Suit Against Executive Action

Eli Saslow, Washington Post, November 22, 2014


[Kansas’s secretary of state, Kris Kobach] has devoted his career to an immigration fight he always believed would be incremental. First he sued states for offering in-state college tuition to illegal immigrants. Then he wrote tough immigration enforcement laws for Arizona and Alabama. Then he counseled Texas Gov. Rick Perry (R) on the legality of using the National Guard to patrol the U.S.-Mexico border. He has been playing the long game, hoping to build a consensus case against amnesty over the course of his career, but now, listening on the phone, it sounds to him as if Obama is saying the case is over and the ruling is in. If so, his life’s work is unraveling, and a last stand will have to come now.

“Unbelievable,” he says, listening to Obama explain the basics of his plan to defer action for up to 4 million illegal immigrants, and when Obama says he will no longer deport people who have “played by the rules,” he begins writing notes.

“Illegal means not playing by rules,” he writes.


People are enraged. They ask about the possibilities of impeachment or arresting the president for treason, and Kobach shakes his head. “Then what can we do?” one man asks.

Kobach says he has spent the last week considering that question, and he can think of only two options. “Congress could vote to defund parts of the government,” he says, but his friends in Congress tell him that is unlikely. The other option is a lawsuit filed by states and U.S. Immigration and Customs Enforcement agents against the federal government. “That one’s on me,” he says. He tells the group he has already begun drafting a suit as the lead attorney, with plans to file it in early December. Texas is interested in being a plaintiff. So are a few other states.

“Either we win this way or we lose big,” Kobach says. “If that happens, all of these illegal aliens will be eligible to feed at the trough filled by hardworking American people.”


That’s how he considers himself: as a man of absolutes, of order. His four daughters are home­schooled. His hair is always gelled and styled. He keeps an oversize dictionary open on a stand by his desk and an antique map collection on the walls. He went from being a champion high school debater, to graduating summa cum laude in his class at Harvard, to rowing for Oxford, to editing the Yale Law Journal.

“I believe in rules and fairness,” he says, and those are among the reasons he says he was attracted to immigration law in the first place. In what other kind of law was the legal conclusion so obvious? “Illegal alien,” he says. “We can argue it a million ways, but really, what more is there to say?”


“Extremist,” he says people call him sometimes.

“Racist,” he says people label him, so regularly that “the word has almost lost its meaning for me, which is sad.”

“Heartless,” he says. “I get that one a lot. But I have compassion for the taxpayers who are supporting these people. I have compassion for our citizens who are unemployed. Every time an illegal alien gets a job, that’s a job that probably would have gone to an American at the bottom of the economic ladder. So, yes, of course I might feel badly for an illegal alien. But feeling is not the end of the inquiry.”

An inquiry for Kobach requires data, economic-impact studies and legal-case histories, and what bothers him most about immigration in the age of Obama, he says, is his sense that the debate has become more emotional than rational. “There are always sob stories and rallies,” he says, and then he explains how last year, one of those protests arrived at his house. Four buses drove up his street in a quiet suburb of Kansas City. A few hundred protestors spilled out onto in his front lawn on a Saturday afternoon, singing and shouting. A line of children marched to his porch and set their shoes on his welcome mat to represent parents who had been deported. They rang the doorbell. “We belong together,” they chanted.

Kobach and his family weren’t home. They had gone to visit in-laws in Nebraska. A neighbor called Kobach on his cellphone to tell him about the rally, and Kobach called the police. Thirty minutes later, the protestors were gone and their shoes had become evidence, and ever since that day, Kobach says he has thought about what might have happened if he had been home to answer the door. It made him think about mob dynamics and the importance of the Second Amendment. It made him think about his four daughters, who could have been inside the house. “If they had seen that, it would have been scarring, and I don’t know how I could have gotten over that,” he says.

“The thing about emotions is they can be unpredictable,” Kobach says. “I like to think I would have been rational.”


The key to his lawsuit is finding the right plaintiffs, he says, so he has spent the last weeks compiling a list of more than a dozen ICE agents who he says are eager to file suit. They were hired and trained to enforce the country’s immigration laws, and now, he says, they believe that the president is essentially asking them to break those laws. Kobach also wants at least one state to be a plaintiff, likely Texas and possibly others. States are “lining up to sue this time,” he says. He could file one lawsuit on behalf of several states, which he thinks might have the best chance of reaching the Supreme Court. Or he could file individual lawsuits, one for each state, and force the issue into several federal court districts.


“In the courtroom, there is a stronger case and a weaker case,” he says. “What I care about is having the stronger case.”