This is a rush transcript from "On the Record," May 17, 2010. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: OK, maybe this wasn't our attorney's general's best sound bite.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Have you read the Arizona law?
ERIC HOLDER, UNITED STATES ATTORNEY GENERAL: I have not had a chance to. I've glanced at it. I have not read it.
(END VIDEO CLIP)
VAN SUSTEREN: Well, if you're like the attorney general and haven't had a chance to read the 12-page law, this is your big chance. You're about to meet a man who helped write it. Joining us live is lawyer Kris Kobach. He's a law professor at the University of Missouri and he helped write the Arizona law.
Good evening, sir.
KRIS KOBACH, HELPED WRITE ARIZONA IMMIGRATION LAW: Good evening.
VAN SUSTEREN: Kris, tell me, before this law was enacted -- or let me back up. What does this law enable the police to do that they couldn't do before the law was signed?
KOBACH: Well, this law is actually quite narrow in scope. The law basically says that police officers, when they are making a stop for some other violation of law, and they in the course of that traffic stop -- would be typical -- they develop reasonable suspicion -- and that's a well-defined concept in the courts, as you know -- they develop reasonable suspicion that the person is an illegal alien, then they have to act on that suspicion and contact ICE, which has a hotline that's been in place for 15 years, and they have to determine if the person is actually lawfully present in the country.
It also requires -- it makes it an Arizona misdemeanor to fail to carry the documents that a person is required to carry by federal law if the person is an alien. For the last 70 years, it's been a requirement of federal law that aliens in the United States register and carry certain documents with them. The Arizona law just says, If you're breaking this federal law, you're also committing a misdemeanor in Arizona.
VAN SUSTEREN: All right...
KOBACH: Those are the two main things that the law does.
VAN SUSTEREN: All right, so before the law, if you stopped someone -- let's say you stopped someone for speeding -- and you had no -- you had -- you could not call ICE if had you reasonable suspicion the person was violating a law? You were barred from that?
KOBACH: Actually -- no. Actually, the police officers could call ICE.
VAN SUSTEREN: So that...
KOBACH: So -- so really, the law...
VAN SUSTEREN: So this really doesn't change...
KOBACH: ... doesn't do that much in that regard. Yes, all it does is...
VAN SUSTEREN: Well, I mean, I guess that...
KOBACH: ... it makes it more systematic.
VAN SUSTEREN: I guess that's what I -- I guess I think that's what's sort of curious and what I don't quite get about the law is what authority that anyone gets from this law. In some ways, to me it just seems like a way for the state of Arizona to engage the feds to finally come down and do something about their national immigration policy.
KOBACH: Well, what it does is, it requires the officers not to turn a blind eye to that reasonable suspicion. It says, Look, if you discover a situation where you've got a packed minivan...
VAN SUSTEREN: But that's the job.
KOBACH: ... they're alien smuggling -- well, but...
VAN SUSTEREN: But I mean...
(CROSSTALK)
KOBACH: ... at least have to make...
VAN SUSTEREN: Well, yes, but that's like if you stop someone for speeding and you go up to the car and you get a driver's license, you run the driver's license and you find out that the person is driving after revocation, you may not give a ticket for the driving -- the speeding because it may not have been -- it might be a warning, but you're going to arrest the person for driving after revocation.
KOBACH: Right. And in the example you gave, the person acted on the additional crime he found. Here, for example, same as if he discovers drugs. You wouldn't tell the officer, Turn a blind eye, pay no attention to the bag of marijuana on the passenger's seat. They're simply saying, Don't turn a blind eye to the immigration violations you see.
VAN SUSTEREN: But what -- but why are we telling -- I mean, we wouldn't pass a law to tell people, Don't turn a blind eye to armed robbery or don't turn a blind eye to shoplifting or don't turn a blind eye -- so I'm not so sure -- if this really doesn't provide any additional police powers, I'm really not understanding why they even -- why Arizona even needed it, except for to send, you know, a flare up in the air to the feds.
KOBACH: It does a number of other things, as well. It includes that documentation provision I mentioned. It also prohibits sanctuary cities, which are cities that are breaking federal law by preventing their officers from communicating with Immigration and Customs Enforcement.
VAN SUSTEREN: Which -- which is another sort of...
KOBACH: It also -- it also has a provision...
VAN SUSTEREN: ... interesting issue, though, because, I mean, one of the questions about this statute is whether or not it usurps the federal power to -- the federal government's in charge of immigration. But in a peculiar twist, a sanctuary city is also setting immigration policy by saying, You're going to be safe here. So it's a -- it's a -- I mean, both of them are messing with the federal -- feds on immigration. And the problem is, the federal government won't do anything about immigration!
KOBACH: Well, we do have some very clear court precedents on this. In 1976, the Supreme Court gave the landmark decision of Deconis (ph) versus Beka (ph), and in that decision, the Supreme Court said states can pass laws to discourage illegal immigration within their jurisdiction. And we do know as far as sanctuary cities are concerned that Congress in 1996 expressly forbid sanctuary cities, passed a law that's found at 8-USC-1373 for anyone with a legal book near them. But it says you cannot have a policy in your city or state that prevents your officers from talking to ICE.
VAN SUSTEREN: Kris, thank you. We're going to obviously continue to follow...
KOBACH: My pleasure.
VAN SUSTEREN: ... this story. Thank you.
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