Kansas Secretary of State Kris Kobach had an op-ed published in The New York Post on June 15, about HR 2164:
Negotiated with the pro-amnesty US Chamber of Commerce, the bill would establish a fairly toothless E-Verify requirement while defanging the only government bodies that are serious about enforcing immigration law -- the states.
But now, the Smith bill threatens to snatch defeat from the jaws of victory. The Arizona law -- along with every other state law on the subject -- would be preempted under the bill.
The Supreme Court held that cooperative immigration enforcement, with the states and the federal government working together to restore the rule of law in the workplace, was permissible under current federal law. But Smith's bill would change federal law so that the states can no longer take any actions against employers who knowingly hire unauthorized aliens.
Read the whole thing here.
On June 19 at National Review's The Corner, Kobach replied to that debate. In part:
Let me say at the outset that I have the greatest respect for both of these men. I am a great admirer of Andrew's writing and legal analysis. And Mark has long fought the good fight for better enforcement of our immigration laws from his position at the helm of the Center for Immigration Studies. Mark is usually right on the money. But in this debate, it is Andrew who is in the right.
First, Mark asserts that "only the federal government can make the determination that a firm has knowingly hired illegal aliens." That assertion is incorrect as a matter of law. As the Supreme Court just held on May 26, in the case of Chamber of Commerce v. Whiting, states do have the authority to determine whether an employer has knowingly hired unauthorized aliens. Indeed, that was the central holding in the case. The states may also penalize such employers by stripping them of their business licenses, as the 2007 Legal Arizona Workers Act does.
Second, Mark states: "The bigger problem is a confusion about the purpose of the state laws on immigration. They are a means to an end - better federal enforcement everywhere. But those who've gotten deeply invested in the state-by-state approach have come to see it as an end in itself." Mark is incorrect. The state laws that I have assisted in drafting and have defended in court - whether in Arizona, Alabama, Missouri, or elsewhere - were never conceived by their sponsors as a way of prodding the federal government to act. They were, as Andrew correctly points out, enacted to protect their citizens against very real problems.
Mark's statement reflects a Washington-centric point of view - the notion that all the really important stuff happens in Congress, and that problems can truly be solved only by the federal government. But the states are not, as Mark suggests, mere proving grounds for future federal legislation. They are sovereign entities enacting real solutions to the specific illegal-immigration problems they face.
Connect with Benjamin Hodge at Facebook, Twitter, LinkedIn, The Kansas Progress, and LibertyLinked. Hodge is President of the State and Local Reform Group of Kansas. He served as one of seven at-large trustees at Johnson County Community College from 2005-’09, a member of the Kansas House from 2007-’08, a delegate to the Kansas Republican Party from 2009-’10, and was founder of the Overland Park Republican Party in 2011. His public policy record is recognized by Americans for Prosperity, the Kansas Association of Broadcasters,the Kansas Press Association, the Kansas Sunshine Coalition for Open Government, the NRA, Kansans for Life, and the Foundation for Individual Rights in Education (FIRE).