GLENN BECK, HOST: Well, a federal judge sucked all of the air out of Arizona's immigration law yesterday. So what do you do today? You protest, of course. Hundreds took to the streets in Phoenix protesting the law. Dozens were arrested. Compare the numbers of arrests to a Tea Party.
Arizona is appealing the ruling to a Ninth Circuit Court and it could go the way of the Supreme Court. But I don't know.
Joining me now is the co-author of Arizona's immigration law, Kris Kobach. He was John Ashcroft's chief adviser on immigration law at the U.S. Justice Department, also running for secretary of state in Kansas.
Kris, I don't understand -- I don't understand how, without any evidence, that there is anything going on. And with this bill -- I've read this bill. All it says is this is the federal statute. We want you to do it. We will send them to you. We'll call you. We'll bring them to you. You must do it all in accordance to federal law.
And it also specifically states -- like a thousand times -- you cannot take into account race. What did they throw this out on?
KRIS KOBACH, CO-AUTHOR, ARIZONA IMMIGRATION LAW: Well, unfortunately, what happened here is the judge agreed with a very radical theory of preemption that the Obama administration lawyers were making.
And basically it is this: Preemption is the idea that Congress has certain constitutional authorities -- areas of authorities. And if Congress wants to displace the states from the field, tell the states you cannot legislate here, Congress can do that.
But the Supreme Court has held for centuries -- and it's clear that our Constitution requires -- that if Congress is going to push the states off the field, it has to be an act of Congress and it has to be unmistakable statement by Congress that the states are longer welcome.
But what the Obama --
BECK: But wait -- they are not -- no longer welcome in this. I think the Congress has been clear. They are not welcome in this. However, they are not doing the job. And so you have a self -- you have a suicide pact with the Constitution now for states.
KOBACH: Well, actually -- well, actually, Congress has passed laws that invite the states to help. There are many laws Congress has passed. But get this: The Obama administration's lawyer said, well, we have a new theory of preemption. They didn't call it a new one, but they say, we think the federal government can push the states off the field, not with an act of Congress but just our executive policy statement that we don't like these particular federal laws. We don't think we should enforce them. And so, therefore, by us deciding not to enforce them, we're going to push the states off the field.
That is a constitutionally significant thing.
BECK: What about sanctuary cities? Is there any way to reverse this and go after the sanctuary cities now? How are sanctuary cities getting rid of it?
KOBACH: Well, don't count on this administration to do it. As you probably heard, the Justice Department, a few weeks ago, issued a statement saying, we have no problem with sanctuary cities. We think they are OK. But this Arizona law -- we have trouble with that.
The reason that is so absurd is because Congress has expressly forbidden sanctuary cities. Congress of 1996 passed two statues to do that. This administration is ignoring the express statute.
BECK: Can a citizen go after that at all or not?
KOBACH: Go after a sanctuary city?
BECK: Yes. Can you --
KOBACH: In Arizona, a citizen can sue under this law. I'm also representing some plaintiffs in California. You can try to sue a sanctuary city, but it is hard to do.