Attorneys General: Can They Override Laws?

The role of attorneys general in declaring laws unconstitutional is a complex and multifaceted issue that varies across different states and legal contexts. While there is no clear-cut answer, it is important to examine the duties, opinions, and actions of attorneys general in shaping state enforcement and challenging the constitutionality of laws. Attorneys general play a crucial role in interpreting and enforcing the law, and their decisions can have significant implications for the rights and freedoms of citizens. In some cases, attorneys general may decline to defend state prohibitions on certain issues, such as same-sex marriage, citing their unconstitutionality. The non-defenses offered by attorneys general in such cases have sparked criticism and highlighted the divide between political ideologies and legal duties. Ultimately, the power to declare laws unconstitutional rests with the judicial system, but attorneys general can influence this process through their legal opinions and challenges.

Attorneys general and the duty to defend

The duties of attorneys general vary across the United States, and there are three types of duties. The first type entails a duty to defend state law against state and federal challenges. The second type has no duty to defend state law in such scenarios. The third type has the power and, in some cases, the duty to attack state statutes of questionable validity. They may proactively file suit to obtain judicial resolution of constitutional questions.

The oath of "support" is a plausible source of a federal constitutional duty to concede the invalidity of state laws. The Constitution requires all state officers to swear to support the Constitution of the United States. Some believe that defending the federal constitutionality of a state law that an attorney general subjectively views as unconstitutional contravenes their obligation to "support" the federal Constitution. However, this interpretation is considered too broad. The oath does not require attorneys general to decline to defend state law or concede its invalidity based on their personal views.

Attorneys general help shape state enforcement through their opinions on the constitutionality of state law. For example, after a 1990 Utah Attorney General opinion that the state's domestic violence law was "probably unconstitutional," several Utah jurisdictions refused to enforce the statute. Similarly, Nebraska Attorney General John Bruning opined that a state campaign finance statute was unconstitutional, and he brought a suit that resulted in a judicial declaration to that effect.

In Nebraska, the attorney general is compelled by statute to challenge the constitutionality of state law when two preconditions are met: they have previously opined that the law is unconstitutional, and a state officer refuses to enforce the law based on that opinion. However, even when codified state law imposes an obligation to defend, the duty's implications remain uncertain, raising questions about the nature of the arguments the attorney general must present.

Attorneys general's opinions on state law

Attorneys general play a crucial role in shaping state enforcement through their opinions on the constitutionality of state laws. While they cannot unilaterally declare a law unconstitutional, their opinions carry significant weight and can lead to changes in state policies and practices. For example, within a year of the 1962 Supreme Court opinion prohibiting the reading of prayers or the Bible in schools, attorneys general from 17 states wrote opinions highlighting the issues involved. This prompted several states to reconsider their laws permitting such practices.

In certain states, like Nebraska, the attorney general is statutorily required to challenge the constitutionality of a state law if specific preconditions are met. However, the duty to defend state laws is often unclear, and attorneys general may find themselves in a delicate position due to the intersection of legal and political considerations.

The authority and responsibilities of attorneys general regarding state law opinions vary across states. In California, the Attorney General, as the chief law officer of the state, provides legal opinions upon request to designated state and local public officials, but not to members of the public. These opinions are highly respected by the courts and help guide state officials in their duties. Similarly, in Georgia, the Attorney General provides legal opinions to the Governor and heads of executive departments, classified as "Official Opinions," while those provided to legislators, judges, or district attorneys are "Unofficial Opinions."

In Virginia, the Attorney General issues official opinions based on a thorough analysis of existing statutes, constitutions, and court decisions. These opinions are not personal views but legal advice to ensure requesters are compliant with the law. While they are not binding, they are given deference by the courts.

Attorneys general have the power to influence state law enforcement and policies through their opinions on constitutionality. While they may not have the authority to unilaterally declare laws unconstitutional, their opinions can shape legal discourse and prompt legislative changes. The duty to defend or challenge state laws often depends on specific state statutes and the individual judgments of attorneys general.

State anti-same-sex marriage laws

The role of attorneys general in the US is to help shape state enforcement through their opinions on the constitutionality of state law. In the context of anti-same-sex marriage laws, attorneys general have played a significant role in challenging the validity of these laws.

The movement for marriage rights for same-sex couples gained momentum in the early 1970s, with the first lawsuits seeking legal recognition. In 1993, the Hawaii Supreme Court's decision in Baehr v. Miike suggested that the state's prohibition on same-sex marriage might be unconstitutional, prompting reactions from opponents and leading to further legal restrictions at both the federal and state levels. The Defense of Marriage Act (DOMA) was enacted at the federal level in 1996, explicitly restricting marriage to male-female couples.

However, in 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that it was unconstitutional for the state to restrict marriage based on sex. This ruling set a precedent, and from 2004 to 2015, a combination of state court rulings, state legislation, direct popular votes, and federal court rulings established same-sex marriage in thirty-six states. By late 2014, same-sex marriage had become legal in states comprising over 70% of the US population.

The role of attorneys general in this process has been significant. In some cases, they have acted on their own opinions, such as the Nebraska Attorney General, who opined that a state campaign finance statute was unconstitutional and subsequently brought a successful suit to secure a judicial declaration to that effect. In the context of anti-same-sex marriage laws, some attorneys general have declined to defend these laws, arguing that they are unconstitutional and that defenses of them are unnecessary or impermissible. This has created a divide among attorneys general, with critics arguing that such non-defenses are shallow and devoid of legal substance.

The duty to defend the validity of state law is not always clear, and it is often shaped by norms and structural factors rather than explicit legal duties. However, in certain states like Nebraska, the attorney general is compelled to challenge the constitutionality of state law when specific preconditions are met.

In conclusion, state anti-same-sex marriage laws have been a contentious issue in the US, with attorneys general playing a pivotal role in shaping the legal landscape. While a majority of states once had laws banning same-sex marriage, these laws are now unenforceable due to the Obergefell ruling. The efforts of attorneys general, alongside those of civil rights campaigners and the judiciary, have been instrumental in challenging and dismantling these discriminatory legal provisions.

State laws on alcohol sales

While attorneys general can help shape state enforcement through their opinions on the constitutionality of state law, ultimately, the Twenty-first Amendment grants each state and territory the power to regulate intoxicating liquors within their jurisdiction. This means that laws pertaining to the production, sale, distribution, and consumption of alcohol vary significantly across the United States.

For example, while the National Minimum Drinking Age Act of 1984 requires all states to set their minimum age to purchase and possess alcoholic beverages in public to 21 years or older, there are exceptions. Some states allow those under 21 to drink for religious purposes, while others permit it on private non-alcohol-selling premises. Additionally, the National Highway System Designation Act of 1995 prohibits drivers under 21 from operating a motor vehicle with a blood alcohol content of 0.02% or higher.

Another example of state-level variation in alcohol laws is the regulation of homebrewing. While it is now legal in all 50 states, the volume limits vary. Most states allow up to 100 US gallons (380 L) of beer per adult per year and 200 US gallons (760 L) per household annually when there are two or more adults. However, homebrewers are prohibited from selling any beer they brew due to federal excise taxes.

Retail dealers of alcohol must also comply with specific regulations, such as record-keeping requirements for sales of distilled spirits, wine, or beer in quantities of 20 wine gallons or more. They are subject to inspection by Alcohol and Tobacco Tax and Trade Officers, and failure to keep proper records can result in fines or imprisonment. Additionally, retail dealers must obtain a wholesaler's basic permit under the Federal Alcohol Administration Act before selling to another dealer for resale.

In conclusion, while attorneys general can influence the interpretation and enforcement of state laws, the regulation of alcohol sales in the United States is primarily determined by individual states and territories, resulting in a diverse landscape of alcohol-related laws across the country.

State laws on taxation

Forty-three states and many localities impose an income tax on individuals, while 47 states and several localities impose a tax on corporate income. These income taxes are in addition to federal income tax and are generally treated as deductible expenses for federal tax computation. However, the 2017 tax law imposed a $10,000 cap on the state and local tax ("SALT") deduction, impacting high-tax states and high-income earners.

State tax laws also cover property taxes, which are computed based on the market value of the property, assessment ratio, and tax rate. The market value of a property is typically determined by recent sales or estimated through techniques like comparable sales, depreciated cost, or an income approach. Property taxes are commonly levied on real estate and business property, with taxing jurisdictions represented by tax assessors/collectors.

In certain states, attorneys general play a role in shaping tax laws and their enforcement. For example, in Nebraska, the attorney general is mandated to challenge the constitutionality of a state law if specific preconditions are met, including a prior opinion of its unconstitutionality and a state officer's refusal to enforce it. Attorneys general across multiple states have influenced tax-related policies, such as those related to the recitation of prayers in public schools and domestic violence laws.

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