During Mitt Romney’s campaign for President, in 2012, he claimed that he could solve the political conundrum of immigration reform by getting undocumented immigrants to “self-deport” from the United States en masse. He was roundly mocked for the idea. Why would millions of people voluntarily leave a country they’d long considered home? His suggestion, though, was hardly a flub—it was meant to be a serious threat. For Kris Kobach, the adviser who sold Romney on the concept, the eventuality of widespread self-deportation was entirely feasible. The government simply had to make life so unrelentingly difficult for immigrants that they’d have no other choice.
Kobach, who has been the Kansas secretary of state since 2011, is advising President-elect Donald Trump during the transition, and he appears to be a candidate for a top post in the incoming Administration. On Sunday, he met with Trump in Bedminster, New Jersey, to “discuss border security, international terrorism, and reforming federal bureaucracy,” according to an official statement. If Trump intends to expel the country’s undocumented immigrants—one of the core pledges of his campaign—Kobach is a natural ally. For more than a decade, he has been the Republican Party’s anointed ideas man for hard-line immigration policies. A press photograph taken of Trump and Kobach together after their meeting Sunday captured a hint of what might be in store. In plain view, Kobach held a memo detailing his “Strategic Plan” for the “Department of Homeland Security.” Several policy proposals were exposed to the camera: a national registry to help “bar entry of potential terrorists”; “extreme vetting” for “high-risk aliens”; construction plans for the “rapid build” of the border wall.
Kobach is fifty years old, and is a graduate of Harvard, Yale Law School, and Oxford, where he received a doctorate in political science. (Kobach declined to comment for this story.) While serving in the Justice Department after 9/11, he helped create a national registry to track immigrants from countries with a “high risk” of terrorism—an effort that resulted in zero terrorism prosecutions but put nearly fourteen thousand people in deportation proceedings. In 2003, Kobach left the federal government. He taught law at the University of Missouri-Kansas City, but he wanted greater influence as an advocate, so he also took a position as a lawyer with an arm of the Federation for American Immigration Reform (FAIR), an organization that the Southern Poverty Law Center has designated a “hate group.” (FAIR has disputed the categorization.)
Over the next several years, Kobach used FAIR as the base of operations for a nationwide campaign to make life miserable for immigrants. In California, he appeared before the state’s Supreme Court to argue against a law that made college affordable for undocumented students known as Dreamers, who arrived in the U.S. as children. On his home turf, in Kansas, he opposed granting in-state college tuition to the children of undocumented immigrants. In Arizona, he argued on behalf of a county that sought to criminalize immigrants as felons for “smuggling” themselves across the border.
The federal government sets immigration-enforcement policy, but Kobach’s approach was to make municipal and state governments vehicles for draconian new initiatives. In recent years, he was involved in either drafting or defending sweeping anti-immigrant legislation passed in Arizona, Georgia, Alabama, South Carolina, and Utah, as well as local ordinances in cities and towns in Pennsylvania, Texas, and Nebraska. These measures all relied on a legal theory known as “inherent authority,” which Kobach has used to argue that local and state officials have the power to enforce national immigration laws if they believe the federal government has been too lax.
When it came to making the case for the measures in court, however, Kobach lost much more often than he won. In Hazleton, Pennsylvania, he argued in defense of an ordinance passed in 2006 that made it illegal for local landlords to rent to undocumented immigrants. Last week, I spoke to Witold Walczak, the legal director of the Pennsylvania A.C.L.U., which sued the city to block the measure. “Kobach was supposed to be this great legal mind,” he told me. “I was told, ‘It’s all over now. Kobach is coming to defend the ordinance.’ ” But Kobach lost badly before the judge. The Hazleton ordinance was never enacted, and defending it cost the city $1.4 million in legal fees. An identical ordinance that Kobach went on to defend in Farmer’s Branch, Texas, wasn’t enacted, either—and cost the city six million dollars as part of a subsequent settlement.
Still, Kobach’s long game may have had less to do with creating legal precedent than it did with sowing social discord. According to the Migration Policy Institute, between July, 2006, and July, 2007, a hundred and eighteen proposals similar to Hazleton’s came up for consideration in towns across the country. This was how self-deportation was supposed to become a reality—if you put immigrants in the center of a raging populist debate at every level of state and local government, life got ugly for them. Walczak told me that the policy fight in Hazleton prompted a number of violent incidents, including threats made against the town’s immigrant community. “It was all about scapegoating,” he told me. “Rocks were thrown through the windows of stores owned by immigrants. Eventually, the Justice Department had to get involved.”
Kobach is best known for co-authoring the country’s harshest anti-immigration law, Arizona’s Senate Bill 1070, which passed in 2010 and inspired “copycat” bills in five other states. The law was an open invitation to racial profiling by local and state police: it required law-enforcement officers to ask individuals about their immigration status if there was a “reasonable suspicion” that they might be undocumented. The law also made it a crime for an undocumented immigrant to work anywhere in the state, or to go anywhere without papers. “Arizona really has been a trailblazer in discouraging illegal immigration,” Kobach told the Arizona Republic. When, a year later, Alabama passed a similar bill, Kobach took another victory lap. “Without question, Alabama’s House Bill 56 is the most comprehensive anti-illegal-immigration state law ever drafted,” he said.
In 2012, the Supreme Court dismantled much of Arizona’s law, and the states that had followed with legislation of their own lost parallel fights in the courts. Afterward, Kobach moved away from immigration policy and spent a few years fighting the spectre of voter fraud, another right-wing obsession.
Trump’s election has revived Kobach’s anti-immigration agenda. Earlier this month, in an interview on CNN, Kobach defended the President-elect’s recent promise to deport two to three million “criminals” upon taking office. “Criminal” is a term that Kobach has long tried to blur into total ambiguity in the context of immigration reform. On CNN, he argued that the incoming Administration would need to expand the definition of “criminal” to include people who have been arrested but not yet convicted. (Trump cited two to three million people as candidates for immediate deportation, but, according to the National Immigration Law Center, only about eight hundred thousand undocumented immigrants have been convicted of crimes in the U.S., many of them for nonviolent offenses like minor immigration violations.) Those who’ve followed Kobach’s career over the years recognized this approach. The whole premise of the Arizona law was to allow the flimsiest pretext of lawbreaking to trigger an arrest—and for that arrest to then open the door to a full investigation of an individual’s immigration status. According to Vivek Malhotra, the former director of civil and human rights at the Ford Foundation, the Trump Administration “looks like it will go back to this notion that people can be absorbed into the deportation process merely by being arrested. You’ll be criminalizing huge swaths of immigrant communities by targeting them for arrest.” In the photograph that was taken after Kobach’s meeting with Trump, one phrase from his memo stood out: the definition of “criminal alien” as “any alien arrested for any crime.”
Kobach has vocally backed Trump’s plans to build a border wall, and he has not only supported the idea of creating a national registry for Muslims living in the U.S. but advocated for it on the grounds that the Japanese internment during the Second World War is a legitimizing precedent. Two days after the election, he told the Los Angeles Times, “There is a vast potential to increase the level of deportations without adding personnel.” In the interview, he fantasized about returning to a time like the final two years of the George W. Bush Administration, when workplace raids were routine and immigrants were hounded daily for their papers. Worse may be yet to come. Until now, Kobach’s extremism has been confined to the state level. Soon, he may have the power of the federal government behind him.
