FNC’s Megyn Kelly Analyzes AZ Immigration Law, Finds Less Stringent Than Federal Law

On Thursday’s The O’Reilly Factor, FNC’s Megyn Kelly appeared to give her take on the Arizona immigration law that the has so upset the left in America, relaying her conclusion that the law actually holds the police to higher standards against racial discrimination and the conditions under which police can enforce the law than current federal laws. Kelly: "And my legal opinion is, it is a little bit like the federal law, but if anything, it's less problematic. Did you know that the Supreme Court already ruled a few years ago that under federal law, cops can pull you over for no reason and demand to see your immigration papers? For no reason. They don't have to have reasonable suspicion."

She went on to recount a relevant Supreme Court case:

And the court, this was written by then-Chief Justice Rehnquist who said in that case, hold on, let me get it because it's here in front of me some place. He said the officers did not need reasonable suspicion to ask Menia for her name, date, and place of birth, or immigration status. The cops do not need reasonable suspicion to ask you about immigration status. Under Arizona law, they do. They do.

Referring to restrictions against police application of the law, Kelly concluded: "It's tougher. Arizona's tougher."

She later summed up:

In Arizona, you have to have reasonable suspicion for stopping somebody in the first place. So it has to be, they call them lawful stop or detention or arrest. So that's number one. Not required under federal law. And number two, there has to be a reasonable suspicion to then inquire your immigration status. Not required under federal law. And number three, under Arizona law, you cannot consider the person's race in determining whether you have that reasonable suspicion. Also not a problem under federal law.

Below is a transcript of the relevant portion of the Thursday, May 20, The O’Reilly Factor o FNC:

BILL O’REILLY: Now for the top story tonight, discrimination and the Arizona law. Clearly, President Obama is unhappy with the tone of the law.

PRESIDENT BARACK OBAMA: The Arizona law has the potential of being applied in the discriminatory fashion.

O'REILLY: All right, so we asked attorney and Fox News anchor Megyn Kelly to analyze the law. And here she is. Now you actually read it, unlike the attorney general?

MEGYN KELLY: Yes.

O'REILLY: Unlike the Homeland Security Chief?

KELLY: Yes.

O'REILLY: Unlike the president. We don't believe he has read it either. We could be wrong.

KELLY: Unlike Homeland Security Department officials.

O'REILLY: You have read it. And how long is it?

KELLY: It depends on how you print it out. It's any place between 10 and 18 pages.

O'REILLY: And how long did it take you, Megyn Kelly, to read it?

KELLY: It took me about an hour because-

O'REILLY: Oh, an hour. Now were you reading it while your hair was getting done and other stuff or?

KELLY: In the commercial breaks on my show, I managed to squeeze it in.

O'REILLY: Okay, so you read. It took an hour, a full hour?

KELLY: Not only did I read the law, but I actually read case law, U.S. Supreme Court history, and other interpretations of that law. And I have to tell you, this is the first time I've taken a seriously hard look at the claim that this is just like the federal law, and the claim that, you know, by the detractors that it's actually discrimination or will lead to discrimination more so than the federal law. And my legal opinion is, it is a little bit like the federal law, but if anything, it's less problematic. Did you know that the Supreme Court already ruled a few years ago that under federal law, cops can pull you over for no reason and demand to see your immigration papers? For no reason. They don't have to have reasonable suspicion.

O'REILLY: I didn't know that. What case is that?

KELLY: It was called Muller versus Menia back in 2005. It was a unanimous Supreme Court decision.

O'REILLY: And what was the lawsuit about?

KELLY: And that was about under what circumstances can a police officer stop you and ask you certain questions. And the court, this was written by then-Chief Justice Rehnquist who said in that case, hold on, let me get it because it's here in front of me some place. He said the officers did not need reasonable suspicion to ask Menia for her name, date, and place of birth, or immigration status. The cops do not need reasonable suspicion to ask you about immigration status.

O'REILLY: What was the-

KELLY: Under Arizona law, they do. They do.

O'REILLY: Yes-

KELLY: It's tougher. Arizona's tougher.

O'REILLY: What was the reasoning by Rehnquist and the other eight justices that the police can ask you that?

KELLY: Because they went through sort of the standards of detention. They're sort of like brief passing on the street. There's something that's greater than that, sort of a detention. And there's like full-on arrest and custody. And the standard that the cops had to follow in questioning you or stopping you under each one of those. And they basically said that when it's just like a passing kind of thing where they want to see your ID, they want to check your immigration status.

O'REILLY: So the police have a right to know who's in the neighborhood-

KELLY: Yes.

O'REILLY: -who's driving and things like that?

KELLY: So you could be harassed by federal law enforcement-

O'REILLY: Okay.

KELLY: -much more so than you could in Arizona, where they say you do have to have reasonable suspicion to stop.

O'REILLY: All right, so the Arizona bill then, you have to have an association with the police, an ongoing-

KELLY: Can I make it clear though?

O'REILLY: Right.

KELLY: In Arizona not only, in Arizona, you have to have reasonable suspicion for stopping somebody in the first place.

O'REILLY: Right.

KELLY: So it has to be-

O'REILLY: Right, something like that.

KELLY: -they call them lawful stop or detention or arrest. So that's number one. Not required under federal law. And number two, there has to be a reasonable suspicion to then inquire your immigration status. Not required under federal law. And number three, under Arizona law, you cannot consider the person's race in determining whether you have that reasonable suspicion. Also not a problem under federal law.

O'REILLY: Okay, but that's where it becomes problematic. Say, what's reasonable suspicion to, reasonable suspicion to me would, you can't produce your driver's license or an insurance card.

O'REILLY: Right, right.

O'REILLY: And that's what I think it is.

KELLY: Right.

O'REILLY: Now the final thing in this law is what is upsetting Barack Obama, Calderon, the American left, is that Mexicans, Mexican-Americans, Mexicans themselves are going to be the targets because Arizona is being overwhelmed by Mexicans. That's who's coming. So, therefore, when you single out Mexicans, that's discriminatory.

KELLY: They think race will be a factor, even though it's not supposed to be.

O'REILLY: But it will be a factor, because if it were Canada we were having trouble with, it would be Canadians.

KELLY: Yes. Well, listen, even to the extent that they're right, that there's a legitimate, you know, fear that the police are going to misapply the law and not follow the law-

O'REILLY: But that's speculation.

KELLY: I know, but listen, that's their complaint. They've already filed a lawsuit with the ACLU. But there is a federal statute that would speak to that. It's called the 1983 action. You can sue cops in states-

O'REILLY: I said that. They do something discriminatory and they can't prove they had the thing. So-

KELLY: That's the remedy.

O'REILLY: So there is checks and balances on this law all day long.

KELLY: Yes.

O'REILLY: So the last question is, if this is true, if what you've read and all the research that you've done that federal law is much harsher-

KELLY: Yes.

O'REILLY: -than the Arizona state law, why is there this outcry at all? Why is President Obama, we know why Calderon's doing it. He needs the money. So we know that. But why does Obama line himself up against 86 percent of the country? 86 percent of the country agrees with you, Kelly-

KELLY: Yes.

O'REILLY: -which is frightening, but they do. All right? And the President is setting himself up against the 86 percent.

KELLY: I'll tell you why, because I come on here as a legal analyst because I practiced law for nine years. I don't think he's looking at it as a lawyer.

O'REILLY: But he's a lawyer.

KELLY: I don't think he's looking at it as a lawyer. I think he's looking at it as a politician.

O'REILLY: But he's got 86 percent. If he's a politician, he's a dumb one.

KELLY: Right, so then get Carl Cameron on here to explain to you why that makes sense for him.

O'REILLY: But does that make sense to you?

KELLY: But I have to say as a legal matter, I don't see what the fuss is about.

O'REILLY: But as a politician, if you were advising as somebody political--

KELLY: Well, the Hispanic vote is a very important vote in this country.

O'REILLY: Mr. President, you have 86 percent of the public against your take. That just seems to be suicide to me.

KELLY: All I can speculate is that the Hispanic vote is a very important voting block.

O'REILLY: 75 percent of Democrats-

KELLY: Yes.

O'REILLY: -support the right of the police to ask. That has to include almost every Hispanic.

KELLY: Yes, that question's for Carl Cameron.