Attorney General's Discretion: Defending Laws Or Not?

Attorneys general are increasingly refusing to defend state laws, particularly those that are discriminatory or championed by opposition parties. While some argue that defending state laws is a primary duty that attorneys general should not refuse, others claim that the duty to defend is dependent on the state and that attorneys general have the power to exercise judgment about which state laws to defend. This has led to a trend of attorneys general refusing to defend divisive laws, especially in partisan issues, with the potential to curry favor with interest groups and voters.

Political reasons for refusal

Politics can play a significant role in an attorney general's decision to refuse to defend a law. Attorneys general are often elected politicians with ambitions for higher office, and their refusal to defend certain laws can be a strategic move to curry favour with specific voter blocs or interest groups. This strategy is particularly effective when the attorney general's political affiliation differs from that of the governor or legislature.

For example, in North Carolina, Attorney General Roy Cooper refused to defend House Bill 2, which went against locally enacted civil rights protections for gay and transgender people. Cooper, a Democrat running for governor, called the bill a "national embarrassment" and insisted it was unconstitutional. His refusal to defend the law aligned with his political interests and aspirations for higher office.

The sharp divide between Republican and Democratic voters and politicians has contributed to the increasing trend of attorneys general refusing to defend state laws. By refusing to defend laws that are divisive or unpopular with their constituents, attorneys general can score political points and present themselves as champions of certain causes. This dynamic was observed in the 2014 race for Wisconsin attorney general, where political advantage was gained by refusing to defend laws that divided the parties.

Additionally, attorneys general may refuse to defend laws they deem unconstitutional, even if that determination is typically the role of the courts. For instance, multiple attorneys general have refused to defend same-sex marriage bans, arguing that these laws transgress federal and state constitutions. This refusal can be seen as a political move to align with popular sentiment, as public opinion on same-sex marriage has shifted significantly over time.

The political nature of these decisions is further highlighted by the varying duties of attorneys general across different states. Some attorneys general have a duty to defend state law against state and federal challenges, while others have no such duty or even the power to attack state statutes of dubious validity. This variation allows attorneys general to make strategic decisions about which laws to defend based on the political landscape of their state.

The role of the state

In some states, attorneys general have a duty to defend state law against state and federal challenges. They are expected to uphold and defend the laws and constitutions of their respective governments, even if they personally disagree with the law in question. This duty is akin to the role of public defenders, who are obligated to represent individuals accused of crimes, regardless of their personal beliefs.

However, in other states, attorneys general may have no duty to defend state law in certain scenarios. They might even have the power or duty to challenge state statutes that are deemed dubious or unconstitutional. This variation in duties across states highlights the importance of understanding the specific context of each state and its unique legal landscape.

The political nature of the role of attorneys general cannot be overlooked. As elected officials, they are inherently tied to the political landscape and may use their position to advance their political careers. This can influence their decisions to defend or refuse to defend certain laws, particularly in divisive political issues such as same-sex marriage, gun control, and campaign finance. Attorneys general might refuse to defend laws that are championed by opposition parties or those that are unpopular with their constituents.

Ultimately, the role of the state in this context is to define the duties and responsibilities of the attorney general position. While this varies across states, the state plays a crucial role in establishing the boundaries and expectations of the role. The state's laws, constitutions, and political dynamics all shape how attorneys general exercise their judgment and make decisions about defending or refusing to defend specific laws.

The attorney-general's duty

The duties of an attorney general vary across US states. Some attorneys general have a duty to defend state law against state and federal challenges, while others have no such duty. A third group has the power (and sometimes the duty) to attack state statutes of questionable validity.

In recent years, more and more state attorneys general have refused to defend divisive laws, especially those championed by opposition parties. This trend is largely attributed to the sharp divide between Republicans and Democrats in today's politics. For example, Democrats refuse to defend gun rights legislation and anti-same-sex-marriage laws, while Republicans refuse to defend campaign finance restrictions, gun control laws, and protections for LGBTQ+ individuals.

Some argue that attorneys general should not refuse to defend a law, as defending state laws is one of their primary duties. However, others contend that it is acceptable for an attorney general to refuse to defend a law if it is unconstitutional or discriminatory. Ultimately, the decision to refuse to defend a law may depend on the political incentives and aspirations of the attorney general.

The refusal of an attorney general to defend a law can have significant consequences. In some cases, it may result in the law being struck down or left undefended in court. It can also lead to political backlash and charges of lawlessness and bad faith.

The attorney-general's right to refuse

The duties of an attorney general vary across the states. While defending state laws is one of the primary duties of attorneys general, some attorneys general have the right to refuse to defend a law. In some states, attorneys general have a duty to defend state law against state and federal challenges. In other states, attorneys general have no such duty, and in a third group of states, attorneys general have the power, and sometimes the duty, to attack state statutes of questionable validity.

Attorneys general who refuse to defend state laws typically say it is because those laws are unconstitutional. However, critics argue that it is not their call to make. The courts are empowered to decide whether a law is constitutional or not, and to bring that question to the courts, there must be a lawyer on both sides.

In recent years, there has been an increase in attorneys general refusing to defend divisive laws, especially those championed by opposition parties. This is particularly likely to occur in states where the attorney general is of a different political party than the governor, legislature, or the preceding attorney general. For example, in 2014, North Carolina's attorney general, Roy Cooper, refused to defend House Bill 2, which preempted locally enacted civil rights protections for gay and transgender people. Similarly, in 2013, the attorney general of California refused to defend Proposition 8, which banned same-sex marriage in the state, and the Supreme Court threw it out on a question of standing.

Attorneys general who refuse to defend laws may be seeking political advantage or trying to curry favor with interest groups and voters who oppose certain state laws. However, refusing to defend a law can also be a matter of conscience, as in the case of an attorney general who opposes the death penalty on religious grounds but is required to defend it. Ultimately, the attorney general is often the one who has the final word on legal matters, and they must make a judgment about which state laws to defend and which ones to leave alone.

The impact of non-defense

One immediate impact of non-defense is the potential for laws to go undefended. However, this is not always the case, as other state attorneys or local prosecutors may have principal litigation authority and can step in. Nonetheless, when an attorney general refuses to defend a law, it can leave the state vulnerable to legal challenges and may result in the law being overturned or struck down by the courts. This can have far-reaching consequences, especially if the law in question is controversial or high-profile, as it can set a precedent and shape future policy outcomes.

The non-defense of a law by an attorney general can also have political implications. Attorneys general are often elected officials with ambitions for higher office. By refusing to defend a law, they can curry favor with certain electoral blocks or political parties, particularly when the law in question is divisive or unpopular. This can lead to increased political polarization and the use of non-defense as a strategic tool to advance specific agendas.

Additionally, the non-defense of a law can raise questions about the balance of power within the executive branch. In some cases, it may be seen as a necessary check on executive power, as it prevents the governor or chief executive from having too much influence over the attorney general's actions. However, it can also lead to conflicts and power struggles within the executive branch, as different officials may have opposing views on the defense of certain laws.

Furthermore, the impact of non-defense by an attorney general can extend beyond the specific law in question. It can bring attention to the absence of a clear legal framework and the politicization of legal matters. This can lead to calls for reform or the establishment of clearer guidelines and responsibilities for attorneys general.

Overall, the impact of non-defense by an attorney general is multifaceted and context-dependent. It can have legal, political, and institutional consequences, shaping the dynamics of power, policy, and public perception. While non-defense may be appropriate in certain circumstances, it is a significant action that can have far-reaching repercussions.

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