01/2011

The Communities: The Cost of Nativist Legislation

On the evening of July 29, 2008, nearly 1,000 people crowded into a high school auditorium in Fremont, Neb., to join a contentious debate over an ordinance that would bar undocumented immigrants from living or working in the town of 25,000. For three hours, one person after another, more than 70 in all, strode to the microphone to speak out, often violently, about the proposed law.


In town after town, lawyer Kris Kobach has helped to write and then defend harsh antiimmigrant laws. The cost to these communities, in terms of both dollars and race relations, has been immense.

If the City Council didn't adopt the proposal, exclaimed one speaker in the historically white town whose population went from 4% Latino in 2000 to nearly 8% in 2008, "we will be forced to defend ourselves by any means necessary."

If it did, retorted another, it would be an attack on the very notion of America as a land of opportunity and "only promote racism and discrimination."

It was past 11 that night when Mayor Donald "Skip" Edwards finally broke the council's stalemate with a tie-breaking "no" vote. "Control of illegal immigration is a federal issue," said Edwards, reflecting the dominant view among legal scholars. "I'm bound by the law, too. All of us want something done to correct the situation. We can best help by pressuring the U.S. government to take action."

Fremont's brush with the nativist movement now sweeping towns and states in the absence of federal immigration reform might have ended there. But City Councilman Bob Warner, who proposed the Fremont ordinance, had already made it clear that he intended to go the distance. "Come hell or high water," he'd said at a council meeting a month earlier, "I will not back off this ordinance."

Two years later, after a bruising campaign that finally led to the ordinance's approval in a special election last June, Fremont is struggling — and not only with the $750,000 in anticipated legal defense expenses that forced it to raise property taxes late last year. Like other towns around the country that have passed laws targeting undocumented immigrants, this once peaceful community dominated by small industry and a meatpacking plant is undergoing a kind of social crisis.

A local advocacy group last summer collected 65 reports in Fremont of racial harassment of Latinos — none of whom, given the racial tension, would give their names. They told of threats to set their businesses on fire, BB guns being fired at them and their children, and being subjected to racial taunts. Latinos "won't talk" to local police any more, Deputy Chief Jeff Elliott adds, "because of the immigration thing." Former City Council President Gary Bolton, an opponent of the law, got threatening E-mails and phone calls — and says the former mayor did, too. The threats that anti-ordinance activist Kristin Ostrom received included one that read, "We shed blood to build this country and we will shed blood again to take it back." At around the same time, someone hurled a large rock through her window.

For all of this and more, Fremont can largely thank one man — Kris Kobach, former advisor on immigration law to Bush Attorney General John Ashcroft, former constitutional law professor, and newly elected Kansas secretary of state. Kobach, who until recently was the paid senior counsel of the nativist Immigration Reform Law Institute, was the main architect of the Fremont ordinance and similar laws in towns in Missouri, Pennsylvania and Texas, and he largely wrote Arizona's anti-immigrant S.B. 1070 law, now stalled in the federal courts. In the next few months, legislators in at least six states plan to introduce similar, Arizona-style statutes.

And as expenses mount and racial strife grows in the communities that he already has touched, Kobach has drawn increasing anger from those who see him as a Harold Hill, the protagonist of the film "The Music Man." Like Hill, they say, Kobach comes to town with big ideas and a can-do attitude but leaves behind a trail of tears — huge legal bills and unworkable laws coupled with social turmoil.

Phoenix Mayor Phil Gordon
Phoenix Mayor Phil Gordon

"Shame on you," said Phoenix Mayor Phil Gordon, an opponent of Arizona's S.B. 1070, when asked what he'd like to say to Kobach, who declined comment for this story. "What good has this divisive law accomplished? I've seen firsthand the way it's torn apart our state, the way it's hurt us economically and hurt us in terms of security by diverting valuable resources away from catching real criminals. The only people better off for Kobach's efforts are people like him — political opportunists who want to use stereotypes and distortions to make a name for themselves."

Enter Stage Right
Kris Kobach has been a creature of the political right for as long as a public record exists. As an undergraduate at Harvard, he was a leader of the College Republicans and an acolyte of the late professor Samuel Huntington, who fretted about immigration-fueled changes in America's ethnic makeup. Kobach opposed the student-led divestiture movement, which sought to end investment in apartheid-era South Africa, saying investors could instead serve as agents of change.

After a successful further academic career — he went to Oxford as a Marshall scholar and earned a doctorate in political science there before going on to Yale Law School — Kobach found work as a constitutional law professor at the University of Missouri-Kansas City. Three years later, in 1999, he went into politics, winning a City Council seat in a Kansas City suburb and, the next year, running unsuccessfully for a state senate seat. But it was in 2001, just 10 days before the 9/11 attacks, that he really hit his stride, landing a prestigious White House fellowship.

Assigned to work with John Ashcroft, Kobach quickly became the attorney general's chief advisor on immigration and border security, although he was not a specialist in that area. When his fellowship expired, Ashcroft asked Kobach to stay on and he did, helping to create a program that required tens of thousands of Muslim and Middle Eastern visa holders and visitors to register with the government and be fingerprinted. The program was extremely controversial, drawing opposition from the Bush State Department as well as an array of human rights groups.

Kobach left his mark on the Department of Justice (DOJ) in other ways. A highly controversial memo that Kobach wrote for Ashcroft in 2002 literally laid the groundwork for Arizona's S.B. 1070, concluding that local and state police have the power to arrest undocumented immigrants for civil violations of immigration law — a position at odds with most legal scholars, not to mention 1989 and 1996 opinions issued by the same DOJ Office of Legal Counsel that published Kobach's memo.

White House officials at the time told The New York Times that they felt "blindsided" by the memo, which they feared could lead to racial profiling, estrange Latinos from the GOP, and harm relations with Latin American nations.

Kobach also takes credit for leading the DOJ's much-criticized 2002 reform of the immigration court system, which cut the number of Board of Immigration Appeals (BIA) judges from 19 to 11— a change described as a "streamlining" of the system by some but criticized by others as a "purge" of pro-immigrant judges that compromised the system's ability to find facts. Within four years, the DOJ, seeing that the BIA reform was clogging the courts and resulting in poor decisions, effectively reversed Kobach's moves, partly by boosting the number of judges.

Kobach was gone by that time, having returned in 2003 to his Kansas City professorship. In 2004, he signed on with the Immigration Reform Law Institute (IRLI), the legal arm of the nativist Federation for American Immigration Reform (FAIR). (The Southern Poverty Law Center lists FAIR as a hate group because of its promotion of white nationalism and its ties to white supremacy; FAIR founder John Tanton has written that a clear "European-American majority" is needed to protect American culture.) As IRLI's paid senior counsel (today, he is listed merely as "of counsel" to IRLI), Kobach worked with IRLI Director Michael Hethmon to file his first anti-immigration lawsuit, this one against Kansas. The suit, which sought to kill a law granting in-state tuition rates to some children of undocumented immigrants, was dismissed in 2006. (A similar lawsuit, filed by Kobach years later, ended last November, when the California Supreme Court roundly rejected his claims.)

Kobach also ran for Congress in 2004, helped along by a $10,000 from U.S. Immigration PAC, which is run by Tanton's wife, Mary Lou. Kobach lost after his Democratic opponent, Dennis Moore, called him a racist and criticized his close association with FAIR — attacks that infuriated Kobach. (Kobach has never publicly addressed the controversial aspects of FAIR.)

In the coming years, Kobach would begin his work with municipalities and states drafting laws aimed at so punishing immigrants that they would "self-deport," in the words of FAIR President Dan Stein. Like others around the country, he also would use the publicity associated with his anti-immigrant activism to boost himself politically, winning election just last November as Kansas secretary of state. During that campaign, Kobach suggested President Obama prove he is a citizen and accused conservative bugbear ACORN of "promot[ing] voter fraud." At the same time, without any evidence and very much against the probabilities, Kobach claimed that "in Kansas, the illegal registration of alien voters has become pervasive."

Taking it to the Streets
In the acclaimed 2009 documentary "9500 Liberty," which documents how Prince William County, Va., first adopted and then quickly repealed an Arizona-style anti-immigrant law, IRLI's Michael Hethmon makes a revealing statement about his organization's aims in towns like Fremont. Each of these local laws, he says, are simply "field tests" — experiments aimed at testing the legality of various approaches to immigration. Though Hethmon elsewhere likened his and Kobach's work to that of pioneering civil rights lawyers, many residents of the towns where they operated today feel more like survivors of crude medical experiments.


In 2006, Mayor Lou Barletta of Hazleton, Pa., wrote the first anti-immigrant ordinance to be adopted in recent years. His community paid a steep price, but Barletta went on to win a seat in Congress.

Hazleton, Pa., whose Latino population skyrocketed from just under 5% in 2000 to an estimated 24% average in the 2005-09 period, was the first.

In 2006, Kobach and Hethmon got involved in the town that hard-line Mayor Lou Barletta had promised to make "the toughest place on illegal immigrants in America." Barletta's proposed ordinance, passed that July, allowed the city to deny business permits to employers who hired illegal immigrants, mandated fines of up to $1,000 for leasing to them, and made English the official language.

Civil rights groups sued the town the next month. In court, the city claimed that undocumented immigrants had brought crime and other ills, but its own data did not reflect that. There reportedly were 8,575 felonies in Hazleton between 2000 and 2007; only 20, or about one fifth of 1%, were linked to undocumented immigrants. Faced with evidence that there was no immigrant-linked crime wave or overcrowded schools and hospitals, Barletta said, "The people in my city don't need numbers." Apparently, that kind of reasoning wasn't good enough for the court system. In July 2007, after Hethmon and Kobach had retooled the law to try to withstand the legal challenge, a federal judge found the law unconstitutional. Last September, a unanimous three-judge panel of a U.S. Court of Appeals upheld the core of the lower court decision. Nevertheless, Hazleton plans an appeal to the Supreme Court.

By that time, the city was looking at $2.8 million in legal costs, according to the local Standard Speaker newspaper — almost $400,000 already paid to its own lawyers, including Kobach, and another $2.4 million it was ordered to pay plaintiffs' lawyers. But that wasn't all. Almost immediately after the ordinance passed in 2006, Latinos began leaving. Within four months, The Los Angeles Times said, merchants in the Latino business district had reported drops in business of 20%-50%. "We have a war against us," embattled store owner Elvis Soto lamented.

According to testimony cited by the appeals court in its decision, one Latino landlord plaintiff reported receiving frightening hate mail on three occasions. One of the mailings included the phrases "If it's brown, flush it down" and "Subhuman spic scum" and also a link to the website of the neo-Nazi National Socialist Movement. In addition, the appeals court cited the case of the publisher of a Spanish-language newspaper in Hazleton who, while covering a pro-ordinance rally, was surrounded by an angry mob who yelled, "Get out of the country!" and "Traitor!"

Barletta, however, did just fine. In 2008, after getting national publicity for his ordinance, he was named "Mayor of the Year" by the Pennsylvania State Mayors' Association. Then, last November, he beat 13-term congressman Paul Kanjorski — the same man he had lost to in races for the same seat in 2002 and 2008.

The St. Louis suburb of Valley Park, Mo., suffered through a similar experience. In July 2006, the same month that Hazleton officials approved their ordinance, Valley Park's Board of Aldermen unanimously passed a Hazleton law clone. Employing language similar to that of Hazleton officials, the Valley Park ordinance declared that "illegal immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, and destroys our neighborhoods" — although there was no evidence at all of either rising crime or overcrowding.

According to St. Louis' Riverfront Times, anonymous calls almost immediately began to come in to the county police, asking them to investigate places where undocumented workers supposedly lived. The paper said officers responded with late-night visits in which they asked Latinos for proof of legal residency. Dozens of Latino residents fled as a result just as reporters from two major television networks were showing up "to chronicle the discord," the paper added.

And, of course, there were the inevitable lawsuits, featuring Kobach as chief defense attorney. At one point, the town decided that it could not defend the part of the law punishing landlords who rented to the undocumented, and repealed it. At the same time, it substantially narrowed the part of the law governing businesses so that only those businesses that failed to use the federal E-Verify system to check on their workers' immigration status could lose their business licenses. In the end, the judge upheld what little was left of Valley Park's anti-immigrant legal package — but that was only after the town was facing some $270,000 in legal costs.

Turmoil in Texas
The Dallas suburb of Farmers Branch, Texas, started out 2006 with a scandal, suspending its top law enforcement officer for telling a hiring panel that as long as he was chief, "We won't have any gooks in this department." It was a comment that portended a long, uneasy season of racial strife involving non-white immigrants.

Then, in May, an 18-month-old toddler was killed in a drive-by shooting carried out by two undocumented immigrants — a crime that seemed to set off a wave of nativist anger. "We need to address illegal immigration in our city and we need to do it now," City Councilman Tim O'Hare wrote to fellow council members. "Drive around our city. Bob [Moses, another city councilman] said he doesn't want our city to become a ghetto. Half of our city already is. More of it will be if we don't do something quickly. … I do not like to use a little girl's death to support a point, but the truth is more people will die if we don't take action."

That August, as Hazleton and Valley Park struggled through the tumultuous aftermath of their own anti-immigrant ordinances, City Councilman Ben Robinson sent an E-mail to colleagues adding his suggestion that "all foreign language books, CD's and periodicals" be removed from the Farmers Branch library. "We should encourage use of the English language not discourage it," he wrote.

While it's unclear what the first contact between IRLI and Farmers Branch was, E-mails show that a local lawyer named David Koch was an intermediary. On Sept. 1, O'Hare received a copy of Kobach and Hethmon's model ordinance from FAIR's then-Western field director, Rick Oltman. He transmitted it to the entire City Council, which requested a letter from Hethmon attesting to its legality.

Hethmon's response was equivocal at best. "I am not aware of any city in the country which has successfully implemented a local enforcement measure," he conceded. He described the latest retooled version of the model ordinance as the best effort to date drawn up by him, Kobach and "some other lawyers," but warned that "no one can advise that any of this is ‘legal' until a court confirms it is so."

Nevertheless, the town went ahead. On Nov. 13, 2006, it approved the ordinance, which required renters to provide proof of legal residency or citizenship and fined landlords who rented to the undocumented. Opponents of the law then gathered enough signatures to trigger a 2007 referendum, assuming that it would be rejected by voters. Four days before the referendum, Mayor Bob Phelps, along with a former mayor and a former city manager, issued an unexpected letter opposing the law. "We believe this is the worst ordinance ever considered by a Farmers Branch City Council," they wrote. "Continuing this course of action will create a financial and social crisis in our community that will take years to recover from." But to the surprise of its opponents, the law — or rather, a retooled version of the law that Kobach had thought more likely to hold up in court — was approved.

Farmers Branch, Texas
Farmers Branch, Texas, Councilman Tim O’Hare (above left), concerned that his city was turning into a “ghetto,” worked with nativist lawyer Kris Kobach to pass harsh anti-immigration ordinances. Latino residents including (from left) Natalie and Elizabeth Villafranca protest the laws.

Once again, rights organizations sued. In all, Kobach wrote a total of three versions of the law, but none of them withstood challenge. The final law was permanently enjoined in March 2010, though the town plans an appeal. According to the Dallas Morning News, it owed $3.7 million in legal fees as of this January.

To begin to meet that expense — and the very real possibility that it will have to spend millions more on appeal — Farmers Branch last September cut $350,000 in personnel funding and another $150,000 from its special events budget.

(Like in the other towns where he's operated, it's difficult to disentangle how much money was paid to Kobach personally, versus other lawyers or for expenses. But Yahoo!News reported last year that Kobach has said that he normally charges about $50,000 a year to defend his ordinances against legal challenges. He described that rate as under market and said he wants to ensure "the cities can afford it.")

There have been other costs, as well. After criticizing the law in run-up to the referendum, for instance, Mayor Phelps had his home vandalized twice and was warned by federal agents sent to investigate the second attack that he should not spend Election Night at City Hall, as he had in the past. He later told a Dallas Morning News columnist that he'd received piles of hate mail calling him "a traitor" and "a pathetic excuse for a leader," among other things. "People turned on him so fast," his wife said of the once-popular politician who had run unopposed in three of his prior four terms. In 2008, after 12 years as mayor, Bob Phelps retired. City Manager Linda Groomer also quit in the aftermath of the law's passage.

At the same time, race relations have gone from bad to worse.

Ross Ramirez, a U.S. citizen, told the Southern Poverty Law Center that he was pulled over by police three times in a month and now avoids Farmers Branch entirely. Elizabeth Villafranca said her downtown restaurant has lost much of its Latino clientele. "Even if the ordinances will never be enforced, they still manage to get the result they want," she said. "We have workers who are documented who don't want to work here because they don't want to be hassled by the police."

Danita Barker, the town librarian since 2003, said the atmosphere in Farmers Branch has changed "drastically" since the law's passage and recounts seeing white library patrons demand to see Latino patrons' immigration papers. She said she was even told by a city official recently that the library was "too welcoming" to Latinos. In November, the town voted to outsource the library and Barker lost her job.

The only people who seem to have benefited from the controversy are lawyer David Koch, who won a council seat, and former Councilman Tim O'Hare, who replaced Mayor Phelps in the 2008 election and has since appeared on almost every TV news network and even spoken to the extreme-right John Birch Society.


Arizona Gov. Jan Brewer supported and ultimately signed the state’s draconian S.B. 1070 law. At the same time, Brewer became known for groundless and provocative statements like one suggesting that Arizonans were being beheaded by immigrants.

Arizona and Beyond
The culmination of Kobach's work to date came on April 23, 2010, when Arizona Gov. Jan Brewer signed what is certainly the harshest anti-illegal immigration measure in memory. The S.B. 1070 law, largely drafted by Kobach, makes it a crime for an immigrant to be in Arizona without carrying immigration documents. It also authorizes police to check the status of anyone detained for other reasons if they have a "reasonable suspicion" that he or she is not in the country legally. The law's stated purpose is "attrition through enforcement."

Kobach, who worked with state Sen. Russell Pearce to write the bill, wasn't very diplomatic in the run-up to its adoption, claiming that its opponents wanted undocumented immigrants to "sign up for Obamacare" and "vote Democratic." He was even less so in private. In an E-mail obtained by the ThinkProgress.org blog, Kobach suggested statutory language authorizing police to use even trivial local regulations as an excuse to demand immigration papers. Specifically, he said, police could "use violations of property codes (i.e. cars on blocks in the yard) or rental codes (too many occupants of a rental accommodation) to initiate queries."

Although polls have shown consistent support for the law by Arizona majorities (except among registered Latino voters in the state, more than 80% of whom oppose it), its adoption set off a firestorm. Critics charged that it essentially legalized the racial profiling of Latinos. It was denounced by the National Council of Churches, the U.S. Conference of Catholic Bishops and other religious groups. Mexico warned its citizens not to visit Arizona, where they might be "harassed and questioned without further cause at any time." The National Association of Latino Elected and Appointed Officials called it "unconstitutional and costly."

On May 1, just over a week after Brewer's signature, tens of thousands of people demonstrated against the law in more than 70 cities, including a Los Angeles rally that drew as many as 60,000 protesters. President Obama called it "misguided," saying it would "undermine basic notions of fairness" and Latino cooperation with police. A large number of lawsuits against the law were filed, including one from the U.S. Department of Justice asking for a preliminary injunction barring enforcement. Last July 28, the day before the law was to go into effect, a federal judge did enjoin the part of the law that authorizes police to question those they suspect of being undocumented immigrants. The state has hired Kobach as a consultant to its defense counsel in the case, which by October had cost it more than $1 million.

Sports and entertainment celebrities harshly criticized the state, and a coalition of pop musicians called Sound Strike is refusing to play in Arizona. But perhaps most damaging of all were boycotts, among them measures in more than half a dozen cities, including Los Angeles, San Francisco, and St. Paul, Minn. The Center for American Progress, a progressive think tank, said in November that losses from canceled conventions had already cost the state $141 million in direct spending.

Early this year, Kobach moved on to yet another controversial and legally dubious strategy. Working with State Legislators for Legal Immigration — a nativist group that describes itself as a FAIR "partner" seeking to implement that group's ideas — he drafted two measures aimed at stripping U.S. citizenship from babies born to undocumented immigrants in this country. Seeking to undo the dominant interpretation of the 14th Amendment, they would redefine a "citizen of a state" as a person who has at least one parent living in the country legally and also urge Congress to redefine citizenship identically. At a Jan. 5 press conference, the group said it intended to introduce the measures in at least five states this year.

The plan was immediately denounced by a coalition of civil rights groups, including the Southern Poverty Law Center, that pointed out that the constitutional amendment had long been interpreted as conferring citizenship upon all who are born here. "It was one of the greatest civil rights achievements of American history to adopt an amendment to the Constitution that sets a fixed, simple and objective rule for citizenship," said Walter Dellinger, a former acting solicitor general and current visiting Harvard Law School professor. "The Supreme Court in 1898 made it absolutely clear that birth in the United States constitutes a sufficient and complete right to citizenship and the Supreme Court has never looked back on it."

Kris Kobach and Kansas state Sen. Peggy Palmer
Kris Kobach has crisscrossed the country in his drive to get communities and states to pass nativist laws. In 2008, he collaborated with Kansas state Sen. Peggy Palmer.

Smelling the Coffee
The record of Kris Kobach and his colleagues at IRLI and FAIR has not been a stellar one. Kobach was the principal architect of anti-immigrant ordinances in four towns. Even after repeatedly modifying their laws to withstand legal challenges and spending small fortunes to do so, only one had even a part of its ordinance upheld. Kobach's Arizona law, meanwhile, is also stuck in the courts, where many scholars predict it will ultimately be struck down. And his latest effort, attacking the 14th Amendment, is very likely doomed to failure as well.

Some communities have begun to wake up to the perils of following Kobach and his colleagues into their legal jihad against undocumented immigrants. Early last year, the City Council of Albertville, Ala., took up the idea of hiring Kobach to draft an ordinance but backed off after consulting with others who had worked with him. "The advice I have gotten from towns which passed similar resolutions said they would not do it again," councilman Randy Amos said then. Afterward, the publisher of the local Sand Mountain Reporter wrote a stinging editorial. "I fear Mr. Kobach targets towns like ours, and towns like Hazleton, Pa., Valley Park, Mo., and Farmers Branch, Texas, as financial windfalls," Ben Shurett wrote. "I think he preys on the legitimate concerns, the irrational fears and even some bigoted attitudes to convince cities to hire him to represent their interests in lawsuits that may not be winnable."

Last October, the same issue came up in the small Houston suburb of Tomball, Texas, with the same result. "Neither I, nor any of your City Councilmen support illegal immigration," Mayor Gretchen Fagan wrote in an op-ed that cited the costs to other cities. But, she added, "As your local elected officials, our job is to protect the taxpayers of Tomball, not address issues beyond our control."

For Phil Gordon, the Phoenix mayor who opposes his state's law, Kobach's crusade to launch state and local attacks on undocumented immigration is ruining the only real chance to deal with immigration problems. "The worst part," he said, "is all the heat, light and hatred surrounding S.B. 1070 has left us deadlocked on the bigger, more important task in front of us — actually passing true comprehensive immigration reform. We're so busy talking about Kris Kobach's train wreck of a law, we have no time to treat the injured lying on both sides of the track."