Now, it’s in the hands of the Trump administration.
After weeks of deliberation and debate, the Kansas Legislature couldn’t muster enough votes to pass a bill eliminating in-state tuition at higher education institutions for students who don’t live in the country legally.
As much as he tried, Republican Attorney General Kris Kobach couldn’t get lawmakers to override the governor’s veto of the bill banning immigrants living in the country illegally from receiving most state or local benefits.
The Senate voted 22-18 to approve the bill. It passed 78-46 in the House.
On the last day of the session, Kobach met in a closed door-session with Senate Republicans to discuss how he believes that federal law requires the state to end the in-state tuition program.
Nevertheless, the Legislature didn’t try to override the veto, given that it was five votes short in the Senate and six short in the House. The veto override had to start in the Senate.
Republican state Sen. Mike Thompson, chair of the Senate Federal and State Affairs, said Senate leadership knew the votes weren’t there for an override of the veto.
“They wanted to get it through,” Thompson said of leadership. “They couldn’t whip enough votes, and it’s not for a lack of trying.
“They realized there were certain members of the caucus that just weren’t going to budge and weren’t going to vote for it,” he said.
“They felt like they couldn’t flip enough votes. People were just holding firm,” he said. “We now just sit back and wait for the lawsuit to come.”
At one point the House and Senate were split on the issue.
The House voted to preserve the in-state tuition program. The Senate initially voted to eliminate the program on a narrow 18-19 vote and later supported the overall bill.
Ultimately, the House agreed to the Senate demands to eliminate the program after concluding that it couldn’t be defended in court.
Kelly vetoed the bill, saying it targeted Kansans who were brought to the country as young children.
“To punish these kids for decisions their parents made years ago is not only cruel, but also not in the best interest of the state,” Kelly said when she vetoed the bill.
“Kansas needs these young people to be educated and trained so they can enter our workforce and contribute to our state’s economy,” she said.
Senate President Ty Masterson’s office did not respond to a request for comment about the failure of the immigration bill and the lack of a vote.
Kobach’s office also did not respond to a request for comment.
On the last night of the session, Senate Vice President Tim Shallenburger, who had advocated for keeping the in-state tuition program, alluded to the possibility that Kobach might try to take him out when he’s up for re-election in 2028.
“I’m not going anywhere. If you all were begging for me to make my farewell speech, you got another two or year away from that,” he said as senators made their thank-you speeches toward the close of the session.
“I may run again, because the attorney general suggested that if I didn’t vote right he would beat me in a primary. I want to take him on on that one,” he said.
Shallenburger didn’t respond to a call seeking more clarification on his comment.
Kobach had cautioned lawmakers that the Trump administration could bring a challenge to the 1994 law like it had in several other states last year.
Last year, the U.S. Justice Department filed lawsuits against seven states — Texas, Kentucky, Illinois, Oklahoma, Minnesota, California and Virginia — with in-state tuition policies similar to Kansas’.
A federal judge halted the 2001 Texas law signed by former Republican Gov. Rick Perry that gave college students without legal residency access to in-state tuition.
On that same day, Texas Attorney General Ken Paxton filed a joint motion along with the Trump administration to end the law for in-state tuition for immigrants not living in the country legally.
Last August, Oklahoma Attorney General Gentner Drummond filed a joint motion with the U.S. Department of Justice to end a state law giving in-state tuition to immigrants who live in the country illegally.
Kobach has predicted the Trump administration would eventually sue Kansas if the Legislature didn’t pass the legislation.
In an interview last Friday after meeting with the Senate Republicans, Kobach said it could be a “matter of days” before a lawsuit is filed challenging the law.
Kobach said he has had conversations with the Justice Department about a possible lawsuit.
“I’ve been informed that Kansas is next in line,” Kobach said.
He said he asked the Justice Department to hold off on a lawsuit until the Legislature had a chance to address the law.
“I don’t know when they’re going to file it, but it’s coming,” he said.
Asked if he would represent the state in a lawsuit challenging the statute, Kobach said, “We’ll cross that bridge when we come to it.”
At the end of March, a federal judge ruled against the U.S. Justice Department in a lawsuit challenging Minnesota’s in-state tuition law.
U.S. District Judge Katherine Menendez – nominated to the court by former President Joe Biden – ruled that the in-state tuition program in Minnesota wasn’t preempted by a 1996 federal law prohibiting states from providing immigrants not lawfully in the United States with any postsecondary education benefit that is denied to U.S. citizens.
The judge agreed with the state of Minnesota that its in-state tuition law did not conflict with federal law because Minnesota does not provide benefits to undocumented students on the basis of residence.
Kobach said the Minnesota law is different from the Kansas statute.
He cites language in Kansas law that says “illegal” immigrants are “deemed” to be residents of Kansas. “Such deeming is solely for the purpose of making such illegal aliens eligible for postsecondary education benefits.”
“The Minnesota statute is different,” Kobach said. “The Minnesota statute doesn’t designate them as residents.
“The Kansas law expressly designates these individuals who are illegally in the country and attend a Kansas high school shall be considered residents for the purposes of tuition.
“That’s the key difference,” he said.
Kobach said he thinks the Minnesota judge’s ruling will be reversed because the court is in the 8th Circuit, which he described as the most conservative in the circuit.
“The Minnesota law does not designate them as residents,” he said. “The judge in the Minnesota case said they really aren’t being given a benefit on the basis residency.
“It’s an opinion based on a different state statute. I don’t think it’s going to stand.”
