Caleb Brown interviews me for this new Cato podcast on a knotty question: when should a state attorney general decline to argue in court in defense of a law he thinks unconstitutional? On the one hand, the legal profession’s norms strongly favor giving every client and cause its day in court, and practical dysfunction might result were cases routinely handed over to others to defend or dropped entirely. On the other hand, attorneys general like other officials take an oath of office to the constitution, which calls in doubt whether they should (or even may) use their skills on behalf of unconstitutional measures. Complicating matters: how should unconstitutionality be assessed, by way of the AG’s own judgment, by way of predicting how the highest relevant court would rule, or by some other method? What kind of difference should it make whether the assessment appears certain, very probable, or more ambiguous than that?
In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.
5 Comments
how should unconstitutionality be assessed?
Obviously, the same way the Supreme Court assesses it: not by logic, the plain meaning of the text, or the intentions of the writers, but by the political opinions of the assessor.
Lawyers have an obligation to present non-frivolous arguments and a reasonable case. That’s a low hurdle, but maybe some laws are so bad that it would require a lawyer to make an argument that seemed too weak to even present in court.
Prosecutors have an obligation to use discretion in the cases they prosecute. Although this is a question of defense, it’s not crazy to think that a public lawyer in general must exercise some discretion that looks more executive than judicial.
Of course, ultimately most of these positions are quite political, so pretending otherwise is going to be counter-productive. It also doesn’t make sense to force political appointees to defend laws they dislike, and the result is going to be poorer argumentation and weaker decisions.
The trend of appointing outside counsel, with a power held either by the governor or the legislature, probably makes sense. It’s still vulnerable to the political process, so courts should probably be ready to appoint guardian-like counsel for orphan laws.
I would like to see the reaction if some AGs decided to no longer enforce laws that they thought were in violation of the 2nd Amendment.
So the big picture principles of many people get puts aside based on how whether they support or dislike the law at issue? This is surprising.
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