A complex legal and ethical question arises when a state’s chief legal officer, the Attorney General (AG), considers whether to decline arguing in court to defend a state law they believe to be unconstitutional. This issue involves a tension between the traditional norms of the legal profession and the constitutional oath of the officeholder.
The Conflict of Duties
On one side of this issue are the strong norms of the legal profession, which generally favor affording every client and every cause an opportunity to be heard in court. Furthermore, practical difficulties and potential dysfunction could result if cases were routinely dropped or handed over to other parties for defense.
Conversely, attorneys general, like other public officials, take an oath of office to uphold the Constitution. This solemn commitment raises doubt as to whether an AG should, or even lawfully may, use their professional skill to advocate for measures that they perceive to be unconstitutional.
Assessing Unconstitutionality
Complicating the dilemma is the methodology for assessing a law’s constitutionality. Key questions arise:
- Should the AG rely on their independent legal judgment?
- Should the decision be based on a prediction of how the highest relevant court would ultimately rule on the matter?
- What degree of certainty is required? Should the standard differ if the assessment of unconstitutionality appears certain, very probable, or simply ambiguous?
Recent Examples and Shifting Stances
In recent history, this dilemma has manifested in various high-profile cases, often leading to shifting political alignments on the issue.
For instance, following the Supreme Court’s decision in Windsor last year, approximately a half-dozen Democratic AGs nationwide declined to defend their respective states’ bans on same-sex marriage, citing the laws’ inconsistency with the federal ruling. Simultaneously, other attorneys general, both Republican and Democratic, continued to argue in defense of these laws. For example, the Attorney General of Kentucky recently announced that the office would not appeal a federal court ruling requiring the state to recognize out-of-state same-sex marriages, though the state’s governor chose to intervene and pursue the appeal.
It is often challenging to find entirely consistent positions across the political spectrum on the refusal-to-defend issue. In a case from 2013, former Virginia Attorney General Ken Cuccinelli, a strong conservative, declined to defend a state education reform law. Similarly, in 2011, Wisconsin Governor Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry, which they deemed unconstitutional. In the latter instance, it was generally liberals who criticized the refusal to defend the law, while conservatives applauded the move. These patterns have, to some extent, been reversed in the recent same-sex marriage cases.
This discussion was prompted by an interview with Caleb Brown for a Cato podcast concerning the core issue.
