Keith Mack
The attorney general's office is a law firm retained by the state. Defending state laws is one of their primary duties, and they are empowered to serve as an attorney to advise and litigate. However, attorneys general may refuse to defend a law if they deem it unconstitutional, sparking debates about the appropriate course of action in such cases. This discretion allows them to shape state enforcement by influencing opinions on the constitutionality of state laws. This raises the question of who should defend the state when the attorney general refuses to do so and the potential consequences of their refusal.
| Characteristics | Values |
|---|---|
| Refusal to defend a law | The attorney general may refuse to defend a law if they believe it is unconstitutional, though some argue that this is not their decision to make. |
| --- | --- |
| Defending state laws | One of the primary duties of attorneys general |
| --- | --- |
| Independent authority | The attorney general has independent watchdog authority and can exercise judgment about which state laws to defend. |
| --- | --- |
| Constitutional expertise | The attorney general's office has constitutional expertise and can advise on the constitutionality of state laws. |
| --- | --- |
| Federal law | Federal law may influence how states regulate their attorneys general, and state officers should treat federal law as they would treat analogous state law. |
| --- | --- |
| Professional conduct | The Model Rules of Professional Conduct state that lawyers should not bring or defend proceedings without a basis in law and fact. |
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What You'll Learn
The attorney general's refusal to defend a law
Defending state laws is one of the primary duties of attorneys general. However, there have been instances where an attorney general has refused to defend a law. Before the US Supreme Court legalised same-sex marriage in 2015, several Democratic attorneys general refused to defend their states' bans on the practice. In another instance, the then North Carolina attorney general, Roy Cooper, decided not to defend House Bill 2, which rolled back anti-discrimination protections for gay and transgender people.
There are differing opinions on whether attorneys general should refuse to defend state laws. Some argue that it is not their place to decide whether a law is constitutional or not, as that power resides with the courts. Others contend that attorneys general should refuse to defend laws they believe are unconstitutional, as doing so helps shape state enforcement and upholds the balance of power within the executive branch.
To address concerns of misconduct or frivolous litigation by attorneys and law firms, the Attorney General may be directed to seek sanctions or recommend disciplinary action, including reassessment of security clearances or termination of contracts. Ultimately, the attorney general's office has the authority to decide whether to defend a state law, and their refusal to do so can have significant implications for the law in question.
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The attorney general's authority to refuse defence
The attorney general's office holds constitutional expertise, and their opinions on the constitutionality of state laws can shape state enforcement. In certain cases, attorneys general have acted on their own opinions, such as in Nebraska, where the Attorney General opined on the unconstitutionality of a state campaign finance statute and subsequently brought a successful suit. This exercise of independent watchdog authority is supported by some, who argue that the attorney general should have the authority to refuse defence when they deem a state statute to be contrary to the state constitution.
However, others argue that the decision of constitutionality should be left to the courts. Greg Zoeller, a former AG in Indiana, asserts that attorneys general should defend state laws even if they disagree with them, as it is not their place to decide which laws are constitutional. This view aligns with the belief that the governor should enforce the laws, and the attorney general should defend them, with only lawmakers and judges evaluating the state constitutionality of statutes.
The attorney general's refusal to defend state laws can have significant consequences, as seen in the same-sex marriage rights case. Before the US Supreme Court legalised same-sex marriage in 2015, several Democratic attorneys general refused to defend their states' bans, reflecting the challenges that arise when the attorney general's defence of state laws conflicts with their personal beliefs or values.
In summary, the attorney general's authority to refuse defence is a delicate balance between their duty to defend state laws and their judgement of a law's constitutionality. While some support the attorney general's independent authority, others emphasise the potential dangers of granting them unchecked power. Ultimately, the attorney general's office plays a crucial role in shaping state enforcement, and their decisions to refuse defence can have far-reaching implications.
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Federal law and the Supremacy Clause
The Supremacy Clause, which was ratified in 1788, is among the Constitution's most significant structural provisions. The core message of the Supremacy Clause is that the Constitution and federal laws take priority over any conflicting state laws. In other words, it establishes the primacy of federal law over state law in cases of conflict.
The Supremacy Clause was invoked by the Supreme Court in its early cases to establish a robust role for the federal government in managing the nation's affairs. The Court used the clause to conclude that federal treaties and statutes superseded inconsistent state laws. This interpretation of the Supremacy Clause played a role in federalism disputes, reinforcing the sharp division of federal and state power.
The Supreme Court's early decisions on field preemption concluded that any congressional action in certain fields automatically displaced all state laws in those fields. However, this stance soon gave way to broader legal and political trends, and the Court narrowed the circumstances in which federal law displaced state law. It articulated a presumption against preemption, under which federal law does not supersede state law unless that was the clear and manifest purpose of Congress.
The Supremacy Clause also addresses the legal status of treaties and the Constitution itself. It establishes that the Constitution binds the judges in every state, regardless of any contrary state laws. This clause also ensures that duly enacted statutes do not provide rules of decision for courts if they are found to be unconstitutional.
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The attorney general's power to refuse on grounds of unconstitutionality
Defending state laws is one of the primary duties of attorneys general, and some argue that they shouldn't refuse to do so. However, attorneys general occasionally refuse to defend state laws, typically on the grounds that those laws are unconstitutional.
The attorney general's power to refuse to enforce a law on grounds of unconstitutionality is a complex issue and varies across different states and jurisdictions. In some states, the belief is that their constitutions function best when executives cannot second-guess the constitutionality of statutes. These states hold that their governors should always enforce the laws, and their attorneys general should always defend them.
On the other hand, some states believe that their constitutional system is optimized when their attorneys general refuse to defend a law if they conclude that it is likely contrary to the state constitution. This is based on the understanding that attorneys general, through their opinions on the constitutionality of state laws, help shape state enforcement.
In practice, there have been instances where attorneys general have refused to defend state laws they deemed unconstitutional. For example, before the US Supreme Court legalised same-sex marriage in 2015, several Democratic attorneys general refused to uphold their states' bans on the practice. Similarly, the former attorney general of North Carolina, Roy Cooper, chose not to defend House Bill 2, which removed anti-discrimination protections for gay and transgender individuals.
The attorney general's authority to exercise judgment about which state laws to defend is upheld by some state Supreme Courts. For instance, the state Supreme Court of Maine supported Tierney, the former attorney general, when he refused to defend a state law he felt was without merit in the 1990s.
However, the question of whether an attorney general can refuse to enforce a law is not without controversy. Greg Zoeller, a former AG in Indiana, argues that attorneys general should not decide whether a law is constitutional or not, as that power resides with the courts.
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The attorney general's conduct and disciplinary action
The conduct of attorneys general and the disciplinary actions they face have been a topic of discussion and debate in various states and at the federal level. One of the primary duties of attorneys general is defending state laws, and there are differing opinions on whether they should refuse to defend certain laws. Some argue that attorneys general should not refuse to defend state laws, even if they disagree with them, as it is not their role to decide the constitutionality of a law. On the other hand, others believe that attorneys general should have the independence to exercise judgment and refuse to defend laws they consider unconstitutional.
In several instances, attorneys general have refused to defend state laws they deemed unconstitutional or without merit. For example, before the US Supreme Court legalised same-sex marriage in 2015, several Democratic attorneys general refused to uphold their states' bans on the practice. Similarly, the former North Carolina attorney general, Roy Cooper, chose not to defend House Bill 2, which rolled back anti-discrimination protections for gay and transgender people. In Maine, the attorney general, Janet Mills, refused to pursue legal actions favoured by the state's GOP Gov. Paul LePage, leading to a lawsuit against her.
The authority to decide on the constitutionality of state laws and the independence of attorneys general vary across states. Some states believe their system functions optimally when executives cannot question the constitutionality of statutes, while others believe their system is enhanced when attorneys general refuse to defend laws they deem contrary to the state constitution. This independence is supported by the fact that the office of the attorney general has the authority to advise and litigate, and by the argument that "constitutional officers" must be able to refuse to enforce laws that conflict with the Constitution.
To address concerns about abuses of the legal system and ensure ethical conduct, the Attorney General has been directed to take disciplinary action against attorneys who violate professional conduct rules, particularly in cases impacting national security, homeland security, public safety, or election integrity. This includes referring attorneys for disciplinary action, recommending additional steps to the President, and prioritising the enforcement of regulations governing attorney conduct and discipline. The Attorney General is also tasked with reviewing the conduct of attorneys and their law firms in litigation against the Federal Government over the last eight years.
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Frequently asked questions
Yes, the Attorney General can refuse to enforce a law. However, this is a complex issue and there are varying opinions on the matter. Some argue that defending state laws is one of the primary duties of attorneys general, and they should not refuse to do so. On the other hand, others believe that attorneys general should have the authority to exercise judgment about which state laws to defend and which ones to leave alone, especially if they believe a law is unconstitutional.
When an Attorney General refuses to defend a law, it can result in legal conflicts, as seen in the case of Maine GOP Gov. Paul LePage suing Janet Mills, the state's Democratic Attorney General, for refusing to pursue legal actions he favored.
An Attorney General might refuse to enforce a law if they believe it is unconstitutional or contrary to the state constitution. They may also refuse if they feel the law lacks merit or is based on partisan interests.
While there may be political pressure or calls for disciplinary action, the ultimate decision to defend a law or not typically rests with the Attorney General. The desire to preserve a balance of power within the executive branch is often cited as a reason to respect the Attorney General's independence.
There can be political and legal consequences. For example, they may face lawsuits or be sued for refusing to defend a law, as in the case of Maine GOP Gov. Paul LePage suing Janet Mills. Additionally, if misconduct is identified, the Attorney General may face disciplinary actions, reassessment of security clearances, or termination of contracts.
