Friends of Sheriffs: Kris Kobach
Newsletter for November 30, 2021
How Kris Kobach Enabled an Army of Sheriffs
A recent story in the Washington Post details how the Trump administration specifically targeted sheriffs as a way to widen the net of immigration detention and deportation through the 287(g) program, an immigration enforcement model created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which was signed by Bill Clinton who praised it at the time as a way to strengthen"the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system.”
If you are familiar with 287(g), then you probably recognize it as the enabling legal force behind ex-Maricopa County sheriff Joe Arpaio’s “immigration sweeps” as well as his “tent city” jail. The law allowed Arpaio to both arrest people (the “street enforcement” provision) under the guise of believing they were undocumented — read, racial profiling — and detain people in his jail for ICE (the “jail enforcement” provision). Barack Obama’s administration was well aware of Arpaio’s activities as well as the federal law behind him, which is why they canceled Arpaio’s “street enforcement” contact in 2009, but inexplicably allowed him to keep enforcing immigration law in his jail, continuing his human rights abuses until grassroots activists and lawyers were able to get Arpaio out of office/ convicted.
The 287(g) program has undergone revisions but was never eliminated, which meant that Trump could use it to expand his immigration detention empire. (To be clear, the “street enforcement” model no longer exists, so, technically, these are 287(g) programs within jails. But, since you can arrest anyone for pretty much anything, I would argue the actual result is not much different — sheriffs just cannot do Arpaio-style sweeps, which have been deemed “too racist.”) According to emails obtained by the Washington Post, the feds worked with anti-immigration activist groups (see FAIR below) to recruit sheriffs who already had anti-immigrant ideas. Per the article:
Under Trump, the number of partners in 287(g) and a related program [ed: this is a pilot program in a handful of states] quadrupled, from about 35 in 2017 to more than 140 earlier this year. About 15 are sheriffs who have been publicly linked to FAIR.
The article is good, and you should read it. It makes a strong argument for why the federal government should eliminate 287(g) altogether — I don’t know why Obama didn’t when he could. (I do know why, but I am still mad about it.) It’s one of the few things the feds can do without getting Congressional approval. Moving on.
Let’s back up and look at the history here. It wasn’t always clear that sheriffs would be an important force in immigration enforcement. And here I want to take a side-step and consider the horror that is Kris Kobach, the attorney and politician who created the legal theory under which sheriffs claim authority over immigration matters on the U.S.- Mexico border, in the interior, and in their jails. Because, you see, sheriffs couldn’t seize all that power for themselves; they needed help.
For well over a century, sheriffs were not involved in immigration enforcement because established case law ruled that immigration and immigration enforcement were purely concerns for the federal government to decide. In 1876 the U.S. Supreme Court decided a case captioned Chy Lung v. Freeman. Chy Lung took a steamship from China to San Francisco, but, when she arrived in port, immigration officials required the ship’s captain to pay a cash bond in order for her to disembark. California law required certain classes of Chinese immigrants — including “lewd and debauched women” — from entering the state without such a bond (payable to the sheriff), which was basically like a promise that the passenger wouldn’t be a burden on the state; this was part of the massive anti-Chinese sentiment in California. The Supreme Court struck the law down, ruling that it violated the Constitution mainly because California could not make its own immigration laws.
Fast forward to 1966 when Kris Kobach was born. Kobach is a pretty educated dude; he went to fancy schools like Harvard, Yale, and Oxford. After graduating from law school, he went to work for John Ashcroft in the Department of Justice and it was here that Kobach learned to love anti-immigration regulation. After 9-11, Kobach created a registry of noncitizens from about 25 counties, most of them Muslim counties. No one on this list had committed any crimes, but over 14,000 of them got deported anyways. Obama barely dismantled this registry before Trump came into office.
Kobach seemed to think teaching law school students in Missouri was boooooring and he wanted to run for higher office, so he became the legal counsel for the Federation for American Immigration Reform, or FAIR, and its legal wing the Immigration Reform Law Institute (IRLI). Both are part of the Tanton network of anti-immigration groups that basically lobby state and federal legislatures for anti-immigrant laws and create the general impression, through multiple organizations, that lots of people oppose immigration, even though most people like immigration just fine. As part of IRLI, he fought the good fight for anti-immigration ordinances, like this one in a Dallas suburb that barred landlords from renting to undocumented immigrants.
From the New York Times in 2009:
Mr. Kobach is on a dogged campaign to fight illegal immigration at the local level, riding an insurgency by cities and states fed up with what they see as federal failures on immigration. As these local governments have taken on enforcement roles once reserved for the federal government, he is emerging as their leading legal advocate.
As this quote explains, Kobach had what he thought was a great idea. Basically, he took the view that counties and states could pass laws to enforce immigration restrictions, so long as those laws made it harder for immigrants. This would grow to include things like, anti-sanctuary cities laws, laws prohibiting non-US citizens from getting drivers’ licenses or public assistance, laws that required non-citizens who lived in-state to pay out-of-state tuition, and laws like Arizona’s SB 1040, the “show me your papers” law, which allowed sheriffs like Arpaio to conduct race-based arrests under the guise of immigration enforcement. (Parts of SB 1040 were knocked down by SCOTUS.)
Win some, lose some, Kobach just keeps on keeping on. It goes to show that all you need are some good credentials, a haircut, and a dream of white supremacy.
Kobach has gone on to have a distinguished legal and political career — starting as an elected city council member for his new home in Kansas, he made a failed run for Senate and became the Kansas Secretary of State in 2010, using that post to pass laws making it harder to vote, purging the voter rolls, and planting the seeds for Trump’s false claims of voter fraud. He ran for, and lost, the governor election. And, he says he plans to run for Attorney General of Kansas in 2022. In his spare time, Kobach helped Romney craft his “immigration” plan in 2012 and was a part of Trump’s transition team with Peter Thiel.
Now we can circle back to where we are today — an immigration detention and deportation system dominated by sheriffs who have been heavily influenced by groups like FAIR and assisted by lawyers like Kobach. It doesn’t matter so much that Kobach hasn’t always won; what matters is that his arguments are influential and provide the anti-immigration movement some of the constitutional race-neutral language it needs to win hearts, minds, and court cases.
Today, I see that race-neutral language everywhere, which focuses on illegality — both in terms of the (alleged) crimes committed by immigrants, a tactic popularized by FAIR, and the technical “illegality” of being undocumented in the U.S. It’s in the mouths of sheriffs talking about “crime” and “human trafficking.” In the New York Times, talking about an “invasion” or “border crisis.” In the wave of laws making it harder to vote and the select prosecutions of individuals who voted “illegally.” This wasn’t language that came out of nowhere; there was a specific design to plant the seeds which have been allowed to bloom. And, to be clear, Kobach has never hidden his agenda, which is to restrict immigration, especially Latinx immigration, in order to preserve white supremacy.