A few years ago, Eric Holder, Kamala Harris and other attorneys general sparked a heated debate over whether an attorney general has a duty to defend the constitutionality of laws even when they believe those laws to be unconstitutional. Harris refused, for example, to defend the constitutionality of California’s Proposition 8, which meant that the initiative’s supporters were forced to do so themselves. That ultimately failed when the United States Supreme Court ruled that they lacked standing to do so in federal courts (although, of course, they could do so in state court, where federal standing rules do not apply). Some, including Indiana Attorney General Gregory Zoeller, denounced this refusal as a threat to the rule of law. But in my view, not only is an attorney general entirely free to refuse to defend a law she thinks unconstitutional, but she is obligated to do so.
First, to be clear, I do not think that an attorney general, or any member of the executive branch, has any discretion to refuse to enforce a law on policy grounds. The fact that a president, governor, attorney general, etc., thinks a law is unwise, unfair, impolitic, obsolete, or whatever, is no grounds for refusing to enforce it. On the contrary, that is a violation of his obligation to execute the law. As I’ve written in my posts about Pres. Obama’s illegal refusal to enforce federal immigration laws, for example, such a refusal is unconstitutional.
But the matter is entirely different if a law is unconstitutional. An unconstitutional law is no law at all. Article VI says that only laws “made in Pursuance” of the U.S. Constitution shall be “the supreme Law of the Land.” Where the Constitution and a statute conflict, the President is bound by oath to enforce the Constitution—not the statute—and must therefore refuse to execute the unconstitutional law. In fact, here, too, the executive simply has no discretion. The Constitution requires him to disregard an unconstitutional statute, not to enforce it,* and the same is true of the attorney general, or, at the state level, of attorneys general—even if they are elected.
I think this much would be stipulated by critics such as Attorney General Zoeller. But the important point to emphasize here is that the executive branch, in order to determine what statutes to enforce and not enforce, must exercise its own independent judgment in determining what statutes are or are not constitutional. For the most part, no doubt, the executive will rely on judicial determinations. But in doing so, the executive is not (or should not be) blindly obeying the courts. He is choosing of his own volition to agree with or abide by a judicial determination. That is as much an act of free choice as when I agree to buy a car part that my mechanic advises me to buy. I am in no respect obligated to obey him. I simply respect him as an expert and choose to take his advice because I trust and believe him. In the same way, a governor who says “this law is constitutional because the courts have said so” is making a positive determination of his own, even if he is choosing to follow the court’s wisdom. In the end, he is the one making the call, and he retains full authority—in fact, the duty—to exercise his own independent judgment about constitutionality.
Attorneys general exercise this independent judgment all the time. It’s their job. If elected by the voters, they have been chosen by the voters to do just this task. If appointed, he or she has been appointed for purposes of exercising such judgment in support of the executive. Either way, attorneys general are not enforcement arms of the court. Their job is to inform and exercise legal judgment on behalf of the executive—whether that means defending a statute in court, challenging the constitutionality of a federal statute on behalf of the state, or conceding the unconstitutionality of a state law in litigation.
In one recent case, several attorneys general sued the Obama Administration for adopting a policy in disregard of federal immigration laws. Why did they do this? Because in their view, that policy is unconstitutional. No court had said so at the time (and no court, technically, has said so yet). But because these attorneys general are in the position of exercising independent judgment regarding the constitutionality of laws—or in this case, a federal policy—they were within their rights to sue the federal government for violating the constitution. In another instance, the Attorney General of Oklahoma sued the federal government to challenge the constitutionality of an IRS rule granting subsidies in federally-run “exchanges” established under Obamacare. When the state’s governor hinted that she might go ahead and establish a federal exchange, the Attorney General told the governor that he would drop that case if she did so. This was another instance of the Attorney General exercising his own discretion to litigate constitutional issues based on his own legal judgment.
In fact, in a more protean sense, state attorneys general make this call all the time. To name one example, they sometimes decline to appeal adverse decisions. If a trial or intermediate appellate court rules that a state law is unconstitutional, and the attorney general refuses to appeal—as Arizona’s attorney general recently refused to appeal a federal decision striking down a state law banning same-sex marriage—that is, again, a decision to exercise independent judgment regarding constitutional issues. As in these cases, I see no reason a state’s attorney general is obligated to disregard her own judgment about a state law’s constitutionality, and to defend that constitutionality in spite of that judgment. Instead, a state’s attorney general not only has the discretion to choose not to defend a statute she believes is unconstitutional, but in my opinion, is duty-bound not to defend such a statute.
There are two arguments typically made to the contrary. First, “who am I to judge?” and second, “the Rule of Law.”
The “Who am I to judge?” objection goes this way: it is the role of the judge, not the lawyer, to determine whether a law is constitutional or not, just as it is the judge’s job—not the lawyers’—to determine whether an accused person is guilty or not guilty. Until that judgment is issued, the job of counsel is simply to make the arguments. But it is already well established that the advocates are not only not required to simply make arguments without exercising judgment, but they are prohibited from doing so. They may not present frivolous arguments, nor may they lie, nor may prosecutors withhold possibly relevant evidence or witnesses. This last point is significant because the defendant has no similar duty. The reason this duty applies to the prosecution is that the prosecutor represents the people of the state (not the state—there’s a difference) and has duties above and beyond simply obtaining convictions. He is, as the Supreme Court says, “in a peculiar and very definite sense the servant of the law.” He must exercise judgment, not only in choosing whom to prosecute and why, but in securing justice rather than convictions.
One source of confusion on this score is the notion, pervasive in the law today, that it is meaningless to speak of a law as being unconstitutional until a court has adjudicated the question: the idea that there is just no fact of the matter about whether a law violates the Constitution until a judge has ruled. On this premise, some say that for the executive to exercise judgment on questions of constitutionality would be “subjective.” This is false. A law’s constitutionality is not a function of a court’s determining the issue—a law either is constitutional or it is not constitutional on its merits, and a court only expresses its judgment on the matter. That judgment detects unconstitutionality—it does not create it. The Sedition Act of 1798 was unconstitutional notwithstanding that the Supreme Court never said so—and President Jefferson was right to decline to enforce it.
It is true, of course, that allowing governors and attorneys general to exercise their judgment on this matter runs the risk of disagreement and clashing judgments. I think this is what people really mean when they (incorrectly) use the word “subjective.” But this risk, while real, is pervasive in all democratic government, and proves nothing. While “who am I to judge” seems reasonable on the surface, attorneys exercise their judgment—or ought to—throughout any litigation, in choosing what causes of action to plead, what arguments to advance, what precedents to rely on. At every stage, attorneys—and particularly public attorneys—must determine for themselves what the constitution means, and what their discretion is, and act accordingly. In deciding for himself what a court opinion means, or what a statute means, an attorney is already exercising that judgment. In suing the federal government in the immigration case, or threatening to withdraw from a constitutional lawsuit already filed, an attorney general exercises that discretion. In choosing whether to enforce a law he considers unconstitutional, a President exercises such discretion. No—discretion is the wrong word. These acts are required by the executive’s sworn duty to uphold the Constitution, any law to the contrary notwithstanding.
As is usually the case, the answer to the question “who am I to judge?” is: it is the obligation of everyone to judge. But it is most especially the obligation of an attorney general—particularly one elected by the people—to exercise his independent judgment on legal matters. He has been chosen by the people to exercise that duty. He is bound by oath to exercise that duty. If he disagrees with others, this is just true of all officers of the government, including judges. The potential for disagreement does not mean that those charged with giving an answer must refrain from doing so: after all, that would require abolishing courts. The fact that people disagree does not mean there is no truth of the matter or that the matter is subjective.
This is why the “rule of law” objection also must fail. That argument says that if the executive is at liberty to choose whether or not to defend a statute, this would do violence to the stability and regularity of the laws, and make them dependent on the president’s will alone. As with “Who am I to judge?,” this argument appears plausible at first, but it rests on a misconception. We are not discussing here the executive’s authority to decline to enforce a law simply because he disagrees with it. We are discussing a president’s or attorney general’s duty not to enforce a law that violates the Constitution. For the executive—for any attorney—to enforce or defend such a law is itself a violation of the rule of law, which holds that the Constitution, and not mere acts of the government in conflict with it, is the supreme law of the land.
It does violence to the rule of law for a government official to act contrary to the Constitution, and it might be even more offensive for an attorney general to defend the government’s authority to act in such ways. That would place him in the position of defending the right of a state to act arbitrarily—which is doubly contrary to the rule of law, since (1) the substance of the authority he is defending is inherently lawless, and (2) such lawlessness contradicts the Constitution’s text, which promises us all “due process of law.”
The rule of law certainly would be undermined if the executive chose not to enforce laws simply because he disagreed with them, or simply because he found it inexpedient to enforce the law. But if the statute in question is not objectionable on policy grounds, but on constitutional grounds, it is a different question. A law, no matter how clear or even desirable, is no law at all if it contradicts the Constitution, and to defend such a thing is itself contrary to the rule of law. That is why Attorney General Zoeller is wrong to rely on United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806) (No. 16,342), to argue that executive “owe[s] a duty to defend statutes even if the executive believe[s] them to be unconstitutional.” The Smith case involved a defendant who claimed that the President had instructed him to break the law because doing so would be expedient. Justice Paterson rightly said that for the President to “authorize a person to do what the law forbids…would render the execution of the laws dependent on his will and pleasure.” Id. at 1230. But the reverse is true if it comes to an unconstitutional law: the President has no authority at all in violation of the Constitution, and for him to not only “authorize,” but to actively defend, the power of a government official to act contrary to the Constitution would render the Constitution itself dependent on his will and pleasure.
Mr. Zoeller, who argues that the attorney general has a “duty” to defend the constitutionality of statutes even where he considers them unconstitutional, nevertheless admits that there are “limits” to this alleged duty. He points to two: there is a “well-accepted tradition of not defending statutes that erode executive power,” he says, and also the attorney general should not defend a statute if “no good-faith argument can possibly be made for their constitutionality.” But note that the first begs the question, because if the executive has a duty to defend laws he considers unconstitutional, then no “well-accepted tradition” can justify the breach of such a duty. This purported exception is wholly arbitrary and self-interested. To say the executive must defend as constitutional all laws except those that intrude on the interests of his own office is unprincipled. But the second purported exception to the purported duty seems to me to actually prove my point even more. Mr. Zoeller admits that where a law is “manifestly” or “patently”—or other synonyms for clearly—unconstitutional, the executive has no duty to enforce the law. But—to turn the question around—who is he to judge?
To say that an attorney general may decline to enforce a law that is “manifestly” unconstitutional is to say that the attorney general must exercise his own independent judgment to determine whether a law is “manifestly” unconstitutional, and if so, to decline to defend it. Putting aside the question of what “manifestly” means (can a law be only a little bit unconstitutional?) The objections to this proposition are those I’ve addressed above: is a law “manifestly” unconstitutional until a court has pronounced it so? Who am I to judge? And does it not do violence to the rule of law for an attorney general to decline to enforce such a law? After all, is “manifestly” not subjective? The answers to these challenges are provided above and they show that whether we use the word “manifestly” or not, the attorney general’s authority is as I have said—he must exercise his legal judgment, to the best of his ability, on that matter, just as a judge must.
These terms like “manifestly” are efforts to retract a concession that essentially admits my position, and so Mr. Zoeller argues that an attorney general may decline to defend a statute only where efforts to do so would rise to the level of “legally frivolous.” This, he writes, “is more than simply a losing argument; it is one that has no chance of success based on clearly established, binding legal precedents and has no chance of being extended or modified from existing precedent.” Actually, this is not quite correct. A legal position is still not legally frivolous under the rules unless it lacks a “good faith argument for a change in existing law.”
This last point is significant because Mr. Zoeller argues that an attorney general must “defend[] all laws,” but excuses the attorney general from defending a statute if doing so would require him to “argue that the court reverse prior precedent in order to find the statute constitutional.” This is an arbitrary line to draw—one that, ironically, concedes too much to the courts. Why should existing precedent be the line? This would render the executive subservient to the judiciary in determining constitutionality, which would clash with his “well-accepted tradition of not defending statutes that erode executive power.” And what if the precedent is wrongly decided?—and what qualifies as precedent under this rule? These are often hard questions to answer. In the Prop. 8 case, Attorney General Harris might easily have argued that the courts would have to overrule Loving v. Virginia or Romer v. Evans in order to uphold Prop. 8. Others would certainly disagree with that view, but that was her view, and under Mr. Zoeller’s theory, that alone justifies her in refusing to defend the statute. Mr. Zoeller’s argument therefore does nothing more than move the point at which judgment must be exercised back a step or two: it says that they attorney general may decline to defend a statute if, exercising her independent judgment, she believes the statute collides with relevant precedent—which is just the position he claims to be arguing against.
Mr. Zoeller claims that his office’s refusal, and the refusal of other attorneys general, to defend certain laws, was justified because binding precedent made clear that those laws were unconstitutional. Oklahoma Attorney General Bill Pruitt not long ago declined to enforce that state’s absurd anti-Sharia law for similar reasons. Mr. Zoeller criticizes the decisions by Ms. Harris and other attorneys general to not defend their states’ prohibitions on same-sex marriage because they “rel[ied] on personal subjective views of the law” because they chose not to present what the considered meritless constitutional arguments. But if an attorney’s judgment as to what constitutional arguments are merited or meritless is a “personal subjective view,” and consequently insufficient to justify a decision not to defend a statute, then all decisions by all public attorneys are always invalid. A prosecutor who chooses to charge a defendant with murder instead of manslaughter, or who chooses what witnesses should be disclosed under the Brady rule, or who chooses whether to file a motion to remove to federal court—all of these fall within the same category of judgments that Mr. Zoeller here dismisses as “personal subjective views.” Unless one is prepared to reject all legal judgments—and the entire enterprise of law—as “personal subjective views,” this argument cannot hold weight.
An attorney’s judgment about what sorts of arguments qualify as frivolous is itself an exercise of the same reasoning process that he or she uses when deciding what constitutional arguments are meritless. Unless one is prepared to argue that an attorney general must exercise no judgment at all, and robotically defend all statutes regardless of his personal views—a position that is untenable, unworkable, self-contradictory, and that Mr. Zoeller disclaims—then one cannot draw the sorts of distinctions that Mr. Zoeller is trying to draw. The matter becomes still worse if one seeks also to defend an attorney general’s authority to sue the federal government for acting unconstitutionally. That, too, represents an exercise of independent judgment about constitutionality. An attorney general cannot simultaneously argue that he must defend all laws as constitutional regardless of his own judgment—and that he may sue the federal government because in his judgment it has acted unconstitutionally.
A final argument against attorneys general conceding the unconstitutionality of state statutes is that doing so violates her obligation to defend her client. But the attorney general is not like other attorneys. Other attorneys must defend their clients’ rights even if the client is guilty, and take whatever legitimate advantage is available. An attorney general represents the people of a state (not the state) and his duty is to the whole public. A state has no legitimate interests contrary to the Constitution, and cannot be considered a “client” outside the limits it imposes. In Ex Parte Young, 209 U.S. 123, 159 (1908), the Court explained that an attorney general’s “general discretion regarding the enforcement of the laws when and as he deems appropriate is not interfered with by an injunction which restrains [him] from taking any steps towards the enforcement of an unconstitutional enactment.” Rather, “[i]n such case…[he] is simply prohibited from doing an act which he had no legal right to do,” and to enjoin him “from doing that which he has no legal right to do is not an interference with [his] discretion.” Likewise, an attorney general can have no obligation to act in a manner he believes contrary to the Constitution—and cannot excuse his doing so on the grounds that he is defending a “client” who has no rights and no interests beyond the Constitution’s boundaries.
It is because of this confusion over the “duty to the client” that Mr. Zoeller finds himself puzzled by the question of attorney general opinions. Attorneys general often issue written opinions to government officials about whether a law is constitutional or not, and then in a later lawsuit, they may be forced to take a position contrary to that earlier legal judgment. “Though the advisory opinion will no doubt undercut arguments made in court to defend that statute,” he writes, but this is okay because the earlier opinion “after all, did not invalidate the statute but merely educated the state client as to the weaknesses of the statute.” But in what other circumstance may an attorney issue a public, written opinion on behalf of his own office, that potentially conflicts with the interests of his client in such a way? In fact, Mr. Zoeller sees this conflict as so problematic that he urges attorneys general to consider refusing to issue written opinions on constitutionality: “The awkwardness accompanying such a situation, however, counsels strongly against issuing an advisory opinion at all when a statute’s constitutionality is in doubt,” he writes. But once again this conflicts with Mr. Zoeller’s earlier position, because for an attorney general to decline to issue an opinion because he “doubt[s]” the “constitutionality” of a statute means for him to exercise his own independent judgment as to his obligations as an advocate in just the way that Mr. Zoeller has been arguing against. He writes that in deciding not to issue an opinion on these grounds, “[c]areful discretion is required, particularly where constitutional issues are at stake.” But this is just the careful discretion that Ms. Harris and other attorneys general used when declining to defend the constitutionality of state statutes. The alleged anomaly he detects here is only an artifact of his untenably extreme position about the duty of an attorney general, and he resolves the anomaly by implicitly conceding the invalidity of his position.
I continue to believe not only that an attorney general has no obligation to reflexively defend any state statute despite his own judgment on the matter, but to the contrary that he has a duty to exercise such judgment and a duty not to defend a statute that he or she genuinely believes to be unconstitutional. This presents no threat to the rule of law—interested parties with standing may still defend the challenged statute—and on the contrary, it is the extreme position of Mr. Zoeller and others that does violence to the rule of law by tending to keep on the books statutes that violate the Constitution, and to expand state authority in ways not warranted by healthy federalism. Moreover, it fosters a pernicious belief among government lawyers that their client is the state as a corporate entity, instead of the people—whose interest is not a statute, but the Constitution. The contrary position elevates political considerations over legal ones, and for that reason it, not my position, shows contempt for the rule of law. I believe that in a democratic society, the attorney general ought to represent the people, not the politicians.
*-For the same reason, the President has a duty not to comply with a court opinion that violates the Constitution.
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