Kobach, the Republican secretary of state of Kansas, is an
architect of laws in several states to combat illegal immigration.
He is also the most prominent figure among a small group of lawyers
working to punch legal holes in Obama's immigration policies.
Obama has pledged to act alone in the face of congressional inaction
on immigration reform, and an announcement could come in early
September. Immigration advocates close to the White House are
pressing for work permits and relief from deportation for up to 5
While opponents can't craft a legal strategy until Obama lays out
the specifics of his plan, Kobach is likely to be at the forefront
of any battle.
"I think anybody inclined to challenge (Obama’s action) would either
already know, or would ask around and find out, that Kobach is one
of the main go-to guys," said Michael Jung, a private lawyer in
Dallas who has worked with Kobach.
Kobach, who is pursuing an existing lawsuit against the
administration over a 2012 executive order Obama issued on
immigration, said any new lawsuit would depend on what the
administration rolled out.
But he made clear his distaste for unilateral White House action on
"In my opinion it really goes to the core of what America is about
as a nation, we are a nation of laws," Kobach told Reuters in an
interview. "When you have this systematic violation of the law by
official policy that's really troubling. It just bothers me down to
the very fiber of my being."
Some legal experts say any legal challenges would have only slim
chances of success. The biggest hurdle is proving “standing,” a
requirement that the person bringing the suit show that they have
been directly harmed.
LAWSUITS A DISTRACTION
But any lawsuits would provide fodder to Republicans, who have tried
in recent months to paint Obama as a lawless president who is
overstepping his authority.
They could also be a costly distraction for an administration
struggling to keep up with myriad challenges at home and abroad. For
example, a series of legal challenges to Obamacare, Obama's 2010
signature healthcare overhaul, has at times frustrated the White
House's efforts to refocus attention on issues it wants to talk
Kobach, a telegenic 48-year-old with degrees from Harvard, Oxford
and Yale universities, helped to draft a controversial 2010 Arizona
law requiring state and local officials to check on the immigration
status of individuals. Critics said the law encouraged racial
Kobach says he has made progress on surmounting the issue of
"standing" in his existing case against the government.
That lawsuit challenges Obama's 2012 decision to grant temporary
deportation relief and work permits to young people brought to the
United States illegally as children by their parents – a program
known as Deferred Action for Childhood Arrivals, or DACA.
After DACA was announced, Chris Crane - head of a union representing
7,600 Immigration and Customs Enforcement employees and an outspoken
critic of Obama's immigration policies – spoke to Kobach about
bringing a suit.
Crane also opposed earlier memos issued by John Morton, ICE's former
director, instructing agents to use "prosecutorial discretion" and
release immigrants who pose no threat to national security in order
to focus the agency’s limited resources on deporting criminals.
Crane and nine other ICE officers sued as individuals, not as an
entire union. They argued the presidential directives forced the law
enforcement officers to violate a 1996 law requiring detention of
immigrants if they are not entitled to be legally admitted to the
A Texas judge dismissed the case last year, saying it was an
employment matter that should be heard by a different court, but
found the agents did have standing to sue.
“The central argument is that if you are put in a position where you
have to choose between breaking the law and being punished by your
superiors – that’s an injury,” Kobach said in a telephone interview
Kobach and the ICE agents have appealed the judge’s dismissal and a
decision is expected next year.
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"The Crane case has the potential to completely torpedo any
administration plans to expand the number of aliens who get deferred
action," Kobach said. "If the ICE agents win, then the
administration's legal position collapses."
Muzaffar Chishti from the Migration Policy Institute think tank said
that while Kobach and the ICE agents made an interesting argument,
case law was stacked against them and their appeal would be
difficult to win.
White House spokesman Shawn Turner said the immigration measures
the White House unveils in the coming weeks would be bulletproofed
against "frivolous" lawsuits, but officials are well aware that
opponents are gearing up for possible legal actions.
"At the end of the day, most likely what the lawyers are concluding
is that this will really be more of a political question than a
legal one," said Michael Gottlieb, a former associate White House
counsel to Obama and now a partner at Boies, Schiller & Flexner LLP
In the ICE agents' case, Kobach also argued that Mississippi had
standing to sue because the state’s finances were strained by the
presence of DACA recipients, but the judge rejected those claims.
“If a future presidential directive were structured similarly to
DACA, then the two entities that would most likely have standing
would be ICE agents and states,” Kobach said.
Mississippi is part of Kobach's appeal and hopes to win standing on
review. The state would have to review any new action by Obama to
evaluate whether officials want to bring a new case, said Nicole
Webb, a spokeswoman for the governor's office.
Kobach's interest in immigration issues began when he worked in the
Justice Department in the Bush administration. Joining in 2001
shortly before the Sept. 11 attacks on the United States, he led
efforts to prevent terrorists from exploiting gaps in the U.S.
Kobach has also helped to draft more than 16 other
immigration-related measures around the country including a
contentious ordinance in Farmer's Branch, Texas that banned illegal
immigrants from renting houses and a law in Kansas requiring voters
to bring birth certificates, U.S. passports or citizenship documents
to the polls.
His immigration activism has been polarizing in Kansas.
Last year, 200 activists descended on his home to protest his
immigration agenda, leaving shoes on his porch to represent family
members who were deported.
Sulma Arias, director of the group Kansas People’s Action that
organized the protest, said Kobach’s legal campaign against the
government foments a broader anti-immigrant agenda. “I think there
are negative implications of him continuing to fight this, even
though I don’t think he can win,” Arias said.
Such lawsuits were intended to create a hostile climate for possible
future steps the president could take on immigration reform, she
Kobach’s Republican opponent in the August primary race for Kansas'
secretary of state, criticized him for using the elected office to
pursue his national agenda. But Kobach said he was working on the
cases only in his spare time during evenings and weekends. He won
that race and faces a Democratic challenger in November.
(Reporting by Mica Rosenberg and Jeff Mason, editing by Caren Bohan
and Ross Colvin)
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