Kobach’s attack on trans Kansans’ IDs is just about upholding the law? I don’t buy it | Opinion
I don’t believe Kris Kobach.
The Kansas attorney general is currently embroiled in a lawsuit with the Kansas Department of Revenue over that department’s decision — under the direction of Gov. Laura Kelly — to continue issuing ID cards that reflect the identities of transgender Kansans. Kobach says that violates the Women’s Bill of Rights law passed by the Legislature earlier this year. The department’s lawyers say the bill was badly written and conflicts with an older law governing driver’s licenses.
I don’t know who will win and who will lose this lawsuit. What I do know is that Kobach’s initial filing in the case was a bit histrionic, casting the governor as a world-historical villain in need of comeuppance.
It’s the governor’s job, Kobach wrote, to carry out the law — not to ignore it.
“She does not possess the power that English monarchs claimed prior to the ‘Glorious Revolution’ of 1688, namely, the power to suspend the operation of statutes,” he wrote. “Indeed, the Declaration of Independence was in part a reaction to this practice.”
That’s a bit overwrought.
It’s also essentially true. The Kansas Constitution says the governor is “responsible for the enforcement of the laws of this state.” If the court system finds that Kobach and not Kelly is right about how the Women’s Bill of Rights should be interpreted — or that it supersedes the older law — then it will be Kelly’s obligation to obey the law whether she likes it or not. That’s her job. Even if the law itself is terrible and mean-spirited.
But again: I don’t believe Kobach.
More specifically, I don’t believe he consistently holds such a modest and narrow view of executive power. Or of the law. And I think that for Kobach, how he views those things depends on who holds power.
He is, after all, a notable and devoted ally of Donald Trump.
Worked for Trump to overturn 2020 election
The U.S. Constitution holds that the president “shall take care that the laws be faithfully executed.” But that’s not really Trump’s style, is it?
Instead, Trump once said the Constitution gives him “the right to do whatever I want as president.” It doesn’t. During his current run for president, he has vowed to restore presidential “impoundment” powers — that is, not to spend money that Congress appropriates if he doesn’t like how it has decided to spend the nation’s money. A 1974 law makes impoundment illegal.
When Trump talks like this — not infrequently — we somehow never hear Kobach make grand pronouncements involving 17th century tyrants.
Trump’s most famous offense nearly brought American democracy to its knees. Rather than “faithfully execute” the Constitution’s transition of power requirements, the then-president conspired in 2020 to overturn the election that Joe Biden won — ultimately inciting the mob that attacked the U.S. Capitol on Jan. 6, 2021.
Trump revealed this week that he will probably soon be indicted for that transgression. Good.
Kobach, of course, was a key part of Trump’s legal team as it worked to overturn the results of elections in swing states that gave their electoral votes to Biden. Their working theory — that Biden-voting states impermissibly made it easier to vote during the pandemic — was shot down by court after court as completely lacking merit.
“If one player in a game commits a penalty and no penalty is called by the referee, that is not fair,” Kobach later told The New York Times. The referees thought otherwise. They stuck with the will of the voters.
Now: Kobach’s lawsuit decrying Kelly’s alleged overreach and his work to keep Trump in power aren’t 100% comparable.
Still, one senses Kobach’s overall approach is to apply the law rigorously when used against relatively defenseless minorities — in this case, trans people in Kansas — and to regard it flexibly when it comes time to preserve the power of his right-wing allies.
The attorney general would have us believe he’s sticking up for the democratic process. I just don’t believe him.