Formerly a lawyer in John Ashcroft’s Justice Department, Krish Kobach has spent the last decade laying the legal framework for stricter immigration laws at the state and local level. He helped craft Arizona’s SB1070, which the Supreme Court partially blocked on Monday, and other legislation like it that’s taking root across the U.S. On Tuesday, TIME spoke with Kobach, now Kansas’ Secretary of State, about the implications of the High Court’s ruling. This interview has been lightly edited for brevity and clarity.
TIME: There seems to be some dispute–was the Supreme Court ruling a victory for proponents of tougher illegal immigration laws?
Kobach: It was a qualified victory. It wasn’t a complete victory, which would have been something like the [Justice Antonin] Scalia [dissenting] opinion upholding every portion of the Arizona law, but it was a qualified victory nonetheless. The most important provision was section 2(b), the arrest provision that the court upheld, and the provisions that the court struck down were relatively minor.
Why is status-check the core of these laws?
The arrest provision will come into play thousands of times every day in the state of Arizona, whenever there’s a traffic citation being issued or a crime being investigated. But the employee provision making it a state violation of law to seek employment illegally, that would only come into play once or twice a year if some county decides to launch an investigation into a particular employer. The one that really does the heavy lifting is the arrest provision, which the Court upheld.
Reading the opinion, Kennedy seemed to be saying that status-check was left alone because it simply offered federal officials more information without imposing unilateral state punishment–which is what the court blocked in the other three measures. If a state can’t impose its own punishments, isn’t that a crucial loss?
(PHOTOS: Being Latino in Arizona)
You’re right, the provisions that were struck down were two substantive crimes that the state might have otherwise prosecuted: illegally seeking work and the crime of not carrying the documents that federal law requires you to carry. That said, in most instances where a local police officer is investigating some other crime, determines or has reasonable suspicion that the individual is an illegal alien, then calls the federal government to verify that, there still will be multiple options. The police officer can hold the individual for some other state violation. Maybe it was a traffic stop. Maybe it wasn’t just one person in the vehicle but 12 people crammed into a seven-passenger vehicle and the officer concludes this isn’t just an illegal alien driving some of his colleagues to work, it appears they’re driving to Kentucky and this is human smuggling. So he might then prosecute under Arizona’s 2005’s anti-human smuggling law. He might then take custody and hand over custody to the county prosecutor. So there are other options. The option that will most frequently be used I think after the Obama Administration is out of office…when things are back to normal and Arizona is treated like the other 49 states, then you would have many of those cases involve a transfer of custody to ICE for deportation.
It’s a hypothetical to talk about other Administrations though. Part of the impetus for this law was that federal authorities weren’t enforcing the law the way state lawmakers wanted them to. The Court hasn’t changed that.
Sure, there was a general frustration that the laws weren’t being enforced enough because of this flood of immigration into Arizona, but I don’t think it was a frustration with ICE officers. I think one of the interesting, untold stories here is that for the past five years since Arizona has been passing a collection of state laws to stop illegal immigration or at least slow illegal immigration, there’s been very good cooperation with the ICE agents who are on the ground in Arizona and state and local law enforcement like the Maricopa County Sheriff’s Office… I think that cooperation would have continued absent the Obama Administration’s order [Monday] that they’re going to restrict their cooperation with the state of Arizona.
Where else will this ruling’s impact be felt?
It will be felt in the other 49 states. The best way to think about it is to step back and look at what the Supreme Court has done in the last two years. In May of 2011, the Supreme Court sustained Arizona’s Legal Arizona Workers Act, which made Arizona the first state in America to require all employers to use E-Verify to verify the legality of the workforce. And now the Supreme Court has upheld the central provision of SB1070. Those are really the two biggest tools in the toolbox for what a state can do. There are only three states that have done both of those things: Arizona, Alabama and South Carolina. If some day in the years ahead, the majority of states take those two steps that would have a dramatic effect on illegal immigration nationwide. The two biggest hammers remain within the states’ prerogative, so I think the path ahead is one in which now the other states have a very clear signal because of these two cases coming out of Arizona.
What about Kansas?
I think you’ll see efforts in Kansas to move both of those pieces of legislation. But it will all be dependent on what happens in the August 7 primary. Each state has its own little game: In Kansas we had a very conservative house and we had a very moderate/liberal senate and there was this coalition of Republican moderates who would align themselves with Democrats and had a governing majority and would defeat conservative legislation. In the August 7 primary it will be determined whether it will be a conservative Republican majority or a moderate/liberal Republican majority. If the conservatives take control of the Kansas senate, then I think you will see legislation like Arizona’s have a good chance of succeeding.
So, What did you think of Scalia’s scathing dissent?
[Laughter] When I was reading Scalia’s dissent, I was wishing that were the opinion of the court! Scalia’s dissent echoes my own thoughts and my own writing – not that he’s looking at my writing, of course – on this issue for the past decade that I’ve been working on state and local law enforcement. I think Scalia is 100% right. But if we had to win part and lose part, I think yesterday’s decision was fine. We won the most important part.
Do you think it was important or productive for him to criticize President Obama on his immigration policies?
This isn’t just a small error, it’s a big error that Justice Scalia believes the majority made. He writes dissents with a purpose in mind. He’s not just throwing spitballs at the majority. He’s trying to make a point that will hopefully influence the thinking of the legal community and maybe the thinking of the court itself in future decisions. I don’t think he was trying to insult the Obama Administration… He was showing an example of the President saying we are not going to enforce the law with respect to this class of individuals. It was more than just a rhetorical jibe. It was part of a broader point he was making.
(Cover Story: We Are Americans, Just Not Legally)
What’s next for immigration laws like Arizona’s SB1070 in other states?
We’re going to see a lot of action in December and January when [state] legislators gear up for the 2013 session. I expect that you will see numerous states where legislators are filing bills that would enact section 2(b) legislation for their respective states. I think there’s a high probability something like that will be filed in Missouri, Kansas, Pennsylvania, Mississippi, Oklahoma and probably a few others.
How will the ruling affect pending court cases?
There are plenty of court cases this will have an effect on. There are pending cases in the 11th circuit, because Alabama has an arrest provision nearly identical to Arizona’s. So does Georgia; that’s also pending in the 11th Circuit… There’s pending litigation in Indiana’s case and Utah’s case—those are both in the circuit courts—so it will affect all of those. The states I mentioned all have something like section 2(b); Alabama has two of the other provisions. The 11th Circuit will presumably strike those two down but uphold the arrest provision. The Alabama law has a bunch of other things in it that are not in the Arizona law, so it’s not clear how the Arizona decision will affect those other provisions.
Is status-check still vulnerable to other types of legal challenges?
I don’t think you can make a viable civil rights claim like a racial profiling claim. A checking of records is a checking of records. There’s no racial profiling going on if you’re drawing your conclusion based on what the database tells you, not based on a person’s appearance or national origin. The Court didn’t really close the door on a Fourth Amendment challenge, where the court was talking about the duration of detentions [under 2(b)]. The Court declined to answer the question of what happens if it takes an inordinately long time to get an answer from the federal government about whether a person is legally or illegally in the country [while they remain in detention]. As a practical matter, that’s not likely to happen. The [federal] Law Enforcement Support Center has been around since the mid-‘90s, they’re very fast and they do usually get the answer back to the officer very quickly. But that’s the slight crack in the open door.