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Arizona in Nebraska? Not Yet

Guest Blogger • Mar 09, 2011

By Kristin Anderson Ostrom

Kobach & State Sen. Janssen

On March 2, 2011, Nebraska’s debate on “illegal” immigration took a turn as the state’s Judiciary Committee questioned the sponsor of an Arizona-like bill (LB 48), Charlie Janssen of Fremont, Nebraska. Like Fremont’s law passed this summer, the “Illegal Immigration Enforcement Act” was written by Kris Kobach, an attorney with FAIR’s legal arm, the Immigration Reform Law Institute.

In June 2010, Fremont voters (57%) passed Ordinance No. 5165 in a special election. The law bans renting, harboring and employing “illegal aliens” within the city’s limits. The language of the law is essentially a copy of an ordinance that Kobach passed in Hazleton, Pennsylvania. Hazleton has spent at least $2.8 million with some estimates totaling $5 million to defend its ordinance all the way to the U.S. Supreme Court.

The Fremont law was previously rejected in 2008 by the Fremont city council on a 4-4 split vote over concerns about its constitutionality and related litigation costs.  Senator Janssen, then a Fremont city council member, voted for the Kobach ordinance in 2008.

In January 2011, Senator Janssen introduced LB 48 in the Nebraska Legislature, requiring police to determine the immigration status of people stopped, detained or arrested when there is “reasonable suspicion” a person is in the country unlawfully.

What is “Reasonable”?

Nebraska’s first public hearing on LB 48 quickly moved to questions of its constitutionality by way of “reasonable suspicion.” State senators asked senator Janssen about the criteria the police would use.

Nebraska state senator Brenda Council (Omaha), one of two African American senators, began the line of questioning.  She pointed Mr. Janssen directly to the language of his own bill:

“For purposes of the act, a peace officer’s reasonable suspicion shall not be based solely upon a persons’ race, color, religion, sex, or national origin.”

“Solely,” she said, “means race and color are criteria” for the police to suspect a person is in the U.S. unlawfully.

Mr. Janssen responded, “I defer to the police.”  After a number of such responses, she concluded that LB 48 reasonably “promotes racial profiling.”

Senator Council continued, “Mr. Janssen, we’re all frustrated with the federal government.  That doesn’t mean the state needs to respond with an unconstitutional law.”  Council stated, “You swore to uphold the Constitution.”

Senator Janssen responded to his colleague, “the 9th Circuit is one of the most over turned.”

Senator Steve Lathrop (Omaha) picked up the questioning, “Can you think of anything other than race and skin color?”

At that point, Mr. Janssen seemed to go off script and said, “Well, when you see a car filled with too many people.”

The hearing room gasped.

An Hour Was Enough

Before members of the Judiciary Committee were finished, before the public testimony began, basic questions exposed significant flaws to LB 48, including its constitutionality, future expensive court battles, increased liability and costs for state and local law enforcement (false arrest and detention), and increased racial profiling.

The bill’s sponsor seemed caught off guard by his colleagues’ specific questions. After all, Fremont’s debate had been so easy.  Since 2008, few if any questions have been asked in public.  In Fremont, assumptions won the day.  Fears of a growing Hispanic population, assumed to be “illegal,” became strong enough to move 57% of voters to pass a bill they knew would cost an estimated $1 million a year.  Elected leaders remained silent for fear of arousing more anger by proponents, the voters, and perhaps other political leaders.  No questions asked.

In Fremont, Kobach’s bill was successful (reaching the 8th Circuit).  Fremont’s demographics made for fertile ground.  All that was needed was to introduce the language that Kobach had used in Hazelton, Pennsylvania, let a few proponents fan racial fears and assumptions, and let it go to the voters.  Once enacted, the Fremont city council hired Kobach to defend his law in federal court and raised property taxes by $750,000 to pay litigation costs in FY 2011.   The trial has been moved to 2012.

Questioning Assumptions

But at the Nebraska state capitol, assumptions were questioned and misinformation quickly exposed.  In an hour, with some rather basic questions, the Nebraska Judiciary Committee brought back reason and thought to Nebraska’s conversation and quieted the angry fervor that was so vital to enacting Fremont’s ordinance.

While Senator Janssen may later attempt to go around the Nebraska Judiciary Committee and bring LB 48 to the floor, the initial open and public debate has helped to clarify that passing Arizona’s simple solution to a complex, federal  problem – is not so simple in Nebraska.


Kristin Anderson Ostrom is the Founder/Lead Organizer of One Fremont One Future, a community initiative of immigrants and natives working together in Fremont.
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