State laws get challenged all the time. Luckily, every state has a law firm on retainer -- namely, the attorney general’s office. But who defends the state when the attorney general is not willing to do it?
That question has been coming up quite a bit lately. Before the U.S. Supreme Court made same-sex marriage rights universal in 2015, several Democratic AGs refused to defend their states’ bans on the practice. Last year, Roy Cooper, then North Carolina’s attorney general, decided not to defend House Bill 2, which gutted anti-discrimination protections for gay and transgender people. Currently, Maine GOP Gov. Paul LePage is suing Janet Mills, the state’s Democratic attorney general, for refusing to pursue legal actions he favors.
These conflicts come up most frequently on high-profile issues where partisans hold strong and opposing positions. Defending state laws is one of the primary duties of attorneys general, something they shouldn’t refuse to do, argues Greg Zoeller, a former AG in Indiana. He had to defend all kinds of laws he didn’t like, including the death penalty, which he opposes on religious grounds. And indeed, most lawyers take on cases and clients they don’t believe in. Attorneys general who refuse to defend state laws typically say it’s because those laws are unconstitutional, but Zoeller says that’s not their call to make. “The courts are empowered to make the decision of whether a law is constitutional or not,” he says. “To bring that question to the courts, there has to be a lawyer on both sides.”
Zoeller points to the example of Proposition 8, which banned same-sex marriage in California. The attorney general there refused to defend the law, so the Supreme Court threw it out in 2013 on a question of standing, on the grounds that the ballot initiative’s sponsors had no right to defend a state law if the state itself refused to do so. “It cost us two years of uncertainty,” Zoeller says. “If the AG of California defended the law, we would have had an answer [on same-sex marriage] two years earlier.”
In practice, an attorney general’s office expresses opinions about the constitutionality of laws all the time. On almost a daily basis, assistant AGs instruct legislators on how to craft bills so they stay within allowable bounds. One reason the AG gets to defend state laws is that constitutional expertise resides in that office.
But it was also part of the intent of constitutions in most states to split authority within the executive branch. Few states follow the federal model, where the attorney general answers to the chief executive. And there clearly could be dangers in making the AG do whatever the governor wants. If the governor can order an AG to sue, what would stop him from ordering the AG not to subject his campaign contributions to scrutiny? “State constitutions have a healthy fear of executive power,” says Jim Tierney, who runs a program on AGs at Harvard University. “They don’t want the governor to have legal power.”
The desire to preserve a balance within the executive branch is one reason why the Kentucky House balked this year at a state Senate plan to strip Attorney General Andy Beshear of much of his authority. Beshear, a Democrat, has repeatedly sued GOP Gov. Matt Bevin. Republican legislators may not like that, but they can still see the point of having an AG with independent watchdog authority.
When he was Maine’s attorney general back in the 1990s, Tierney refused to defend a state law he felt was without merit. The state Supreme Court upheld his authority to exercise judgment about which state laws to defend and which ones to leave alone. It may seem problematic to have AGs decide on their own which state laws can stand up to scrutiny, but ultimately someone has to make the call. The American system of governance is all about splitting power. When it comes to legal matters, the attorney general is most often going to be the one who has the final word.