State Executive Nondefense or "Failure to Defend"
Among the many issues raised in the marriage equity debate is the role of the state attorney general when faced with state constitutional provisions, statutes or regulations that he or she believes to be of questionable constitutionality. While this is not at all a new issue for attorneys general and their staffs, marriage equity and increasingly other issues such as Voter IDs, immigration, death penalty and abortion have focused public attention on the parameters of the "duty to defend" that is a core function of all attorneys general.
Traditional research techniques never tell the entire story of how attorneys general make their decisions, and so the National State Attorney's General Program at Columbia Law School has assembled these materials in order to allow those interested to get closer to the truth. The materials consist of several excellent law review articles, but also contain press accounts and op-eds from attorneys general who wrestle with the issue. The materials also contain historical material, such as the memoir of Kansas Assistant Attorney General Paul Wilson who, in 1954, defended the Topeka School Board in Brown v. Board of Education.
Of particular interest is an actual discussion in 2009 among attorneys general on the precise issue of how they respond when faced with a statute - or a state regulation - that may be unconstitutional. In this video, state attorneys general and former attorneys general are remarkably candid as they assess their responsibilities.
The National State Attorney Program has, as part of its mission, the development and dissemination of legal information used by state attorneys general in carrying out their responsibilities. We hope that by presenting these materials we are contributing to that end.
Law Review Articles:
- ABSTRACT: Although scholars have long debated the scope of the President’s power to decline to defend statutes challenged in litigation, no one has yet undertaken a systematic examination of nondefense by state executives, who, like their federal counterparts, often find themselves torn between competing obligations to defend statutes, on the one hand, and to maintain fidelity to state and federal constitutions, on the other. This Article takes up the question of how the executive nondefense power is conceived, wielded, and constrained—within what institutional frameworks and with what implications—in the states. Drawing on a number of case studies, the Article sketches an initial taxonomy of approaches to executive nondefense in the states, argues that significant benefits can attach to the practice of nondefense, and provides a set of recommendations for ensuring that when nondefense occurs, its benefits can be realized. Although critics of executive nondefense in the federal system worry that its use threatens to inject partisanship, instability, and uncertainty into the law, the practice in the states, in which nondefense occurs relatively routinely in the context of a variety of institutional design choices, provides a powerful counterpoint to those objections.
William P. Marshall, Break up the Presidency? Governors, State Attorneys General and Lessons from the Divided Executive, 115 YALE L. J. 2446, 2455-2458 (2006).
- In this 2006 article published in the Yale Law Review, Professor William Marshall of University of North Carolina School of Law examines the state experience with diffused executive power, focusing specifically on the office of state attorneys general. Professor Marshall argues that the state model of an independent attorney general has been effective in providing an intrabranch check on state executive power and examines whether the federal government should adopt this model. As part of this analysis, Professor Marshall looks at the ability of a state attorney general to exercise independent legal judgment in litigation, and whether a state attorney general is obliged to provide a defense for agency clients he/she may deem in violation of the law.
Jeremy Girton, Note, Public Choice and the Rise of the Attorney General Veto, 115 COLUMBIA L. REV. (forthcoming Fall 2014).
- ABSTRACT: Public choice theory’s transactional view of the legislative process counsels that representative democracy will systematically lead to an under-enactment of “entrepreneurial” statutes — policies that distribute benefits generally but impose costs narrowly. In an effort to correct this imbalance, many states adopted procedures for direct enactment of legislation by the electorate: the initiative and referendum. However, when entrepreneurial policies are challenged in federal court, constitutional standing’s injury-in-fact requirement prevents private citizens from interceding in their defense, because no individual or group has a differentiable cognizable interest in their enforceability.
This Note argues that when entrepreneurial statutes are challenged, state attorneys general can effectively exercise a “veto” by declining to defend them in federal court. While the case of Hollingsworth v. Perry might suggest that a veto could only affect direct legislation, in reality any statute that espouses an entrepreneurial policy could be vulnerable. Instead, this Note argues that attorney general vetoes have so far disproportionately affected initiatives and referendums because they are frequently used to enact entrepreneurial policies. After discussing the circumstances necessary for an attorney general veto to occur, this Note discusses the normative implications of this power and how state officials have exercised it. This Note then reviews proposed reforms designed to limit its use, and concludes that structural modifications to formalize the veto process are the best solution.
National Association of Attorneys General, September 2009 Ethics Update Presented by National State Attorneys General Program Director James E. Tierney.
- Director James E. Tierney leads this 2009 ethics training at NAAG's annual meeting. The training focuses on an attorney general's refusal to defend laws and cases. The training includes a Q&A session between Director Tierney and participating attorneys general and former attorneys general.
- To view the video, please click here
Symposium: Government Lawyering By “The People’s Lawyer” - An Examination of the Office of Massachusetts Attorney General Francis X. Bellotti, 1975-1986, Boston College School of Law.
- This symposium, which took place at Boston College School of Law in June 2013, considered the role of state attorneys general by analyzing the tenure of former Massachusetts Attorney General Francis X. Bellotti. Director James E. Tierney along with former Massachusetts governor and presidential candidate Michael Dukakis were amongst a number of distinguished guests and participants. During the symposium, General Bellotti discussed his decision not to defend a class action suit in 1970, brought by family members of individuals institutionalized at Massachusetts' Walter E. Fernald State School, a publicly funded institution for the treatment of individuals with developmental disabilities. Attorney General Bellotti recounts that during a visit to the institution, he observed residents living in decrepit conditions. He promptly sent a letter to then Governor Michael Dukakis stating that his office could not, in his estimation, defend the State against the suit because the living conditions he witnessed at the school did not pass constitutional muster.
- To watch Director Tierney discuss the refusal to defend issue in the context of Attorney General Bellotti's tenure, please click here (Discussion begins around the 22:00 minute mark of the video).
- To watch Attorney General Bellotti discuss the Walter E. Fernald State School case and his deliberative process, please click here (Discussion begins around the 12:28 minute mark of the video).
- To watch Governor Dukakis discuss Attorney General Bellotti's decision not to defend the suit brought by the parents of Walter E. Fernald State School residents, please click here (Discussion begins around the 38:00 minute mark of the video).
AG Tensions Common Throughout U.S., WFAE 90.7 - North Carolina (Oct. 25, 2013).
- In this short interview, Program Director James Tierney discusses the independence of State Attorneys General during a radio interview with North Carolina's NPR affiliate WFAE 90.7. During the interview, Director Tierney briefly highlights the issue of state executve nondefense.
Do State Attorneys General Have a Duty to Defend State Law?, Federalist Society for Law and Public Policy Studies Podcast (April 4, 2014), featuring:
- Professor Neal E. Devins, Professor of Law, Professor of Government, and Director of the Institute of Bill of Rights Law, William and Mary Marshall-Wythe School of Law
- Hon. John W. Suthers, Attorney General, State of Colorado
Paul E. Wilson, A Time To Lose: Representing Kansas In Brown v. Board Of Education, (University Press of Kansas, 1995).
- Excerpts from the memoir of Kansas Assistant Attorney General Paul Wilson, who defended the Topeka Board of Education in the case of Brown v. Board of Education before the Supreme Court of United States in 1954. Paul Wilson wrote the book to highlight the reasons the Kansas Attorney General's office defended the Topeka Board of Education's policy of maintaining segregation in educational institutions under a Kansas law that permitted, but did not mandate, a segregated school system. Paul Wilson believed that had the State not put up a defense in the case, the Court would not have been given the opportunity to rule that segregation was unconstitutional. Although opposed to the policy of segregation, as an attorney, Wilson swore to uphold the law and the nation's adversarial legal system, in spite of his own personal preferences and beliefs.
To Defend or Not to Defend a State's Ban on Gay Marriage - Attorney General Statements/Op-Eds:
Dana Jay, Fla. Attorney General Pam Bondi explains why she will appeal same-sex marriage ruling, My Fox Orlando.com, July 18, 2014 (updated July 25, 2014).
- Florida Attorney General Pam Bondi will appeal a decision by a Circuit Court judge in the Florida Keys, finding the state's ban on gay marriage unconstitutional. Attorney General Bondi believes the decision regarding the constitutionality of the state's ban on gay marriage should be rendered by a higher appeals court, and ultimately the U.S. Supreme Court.
Niraj Chokshi, Utah attorney general says he must defend his state’s gay marriage ban. Some of his counterparts disagree, Washington Post, July 9, 2014.
- Following a decision by U.S. Court of Appeals for the Tenth Circuit in Kitchen v. Herbert, et al., affirming the District Court’s decision that the state’s constitutional amendment banning same sex marriage was unconstitutional, Utah Attorney General Sean Reyes announced that his office will file a writ of certiorari to the U.S. Supreme Court in lieu of seeking an en banc review by the Tenth Circuit. In a statement, Attorney General Reyes stated that it was his “sworn duty to defend the laws of our state.”
Michael Biesecker, NC attorney general won't defend his state's gay marriage ban, The Christian Science Monitor, July 28, 2014.
- Following a decision by the U.S. Court of Appeals for the Fourth Circuit finding Virginia's ban on same-marriage was unconstitutional, North Carolina Attorney General Roy Cooper announced that his office will no longer defend his state's voter approved ban on same-sex marriage. Two pending cases were originally filed in federal court challenging North Carolina's marriage ban.
Kentucky Attorney General Jack Conway's Statement on Same-Sex Marriage, WKYT.com - Kentucky, Mar. 4, 2014.
- In an emotional speech, Kentucky Attorney General Jack Conway provides the reasons why his office will no longer defend Kentucky's ban on same-sex marriage.
- In this op/ed, Colorado Attorney General John W. Suthers lays out the case for defending laws one may feel a personal aversion to. Although Attorney General Suthers believes there are situations where an attorney general cannot, in good faith, defend a law, state bans on gay marriage do not fall into that category, as the constitutionality of such statutes or state constitutional amendments are murky at best. Consequently, attorneys general should not effectively operate as legislators in failing to defend their respective state law.
Greg Zoeller, Attorney general: I don’t make Indiana’s marriage laws, I’m obligated to defend them, Lafayette Journal and Courier, Mar. 24, 2014.
- In this op/ed, Indiana Attorney General Greg Zoeller responds to those who have questioned his decision to defend Indiana's gay marriage ban.
Scot Graf, Idaho Attorney General Wasden Will Continue To Defend State's Gay Marriage Ban, Boise State Public Radio (Jan. 28, 2014).
- In this short radio interview, Idaho Attorney General Lawrence Wasden states that his agreement or disagreement with the policy choices made by the citizens of Idaho is irrelevant. It is the attorney general's duty to defend the policy choice of the people, when those choices are challenged and appropriate defenses can be made.
Virginia Attorney General Mark Herring, National Public Radio (Jan. 24, 2014).
- Virginia Attorney General Mark Herring tells NPR news why his office will no longer defend the state's ban on same-sex marriage.
Post-Crescent Media Editorial Board, It's attorney general's job to defend state laws: Other View, Marshfieldnewsherald.com, June 25, 2014.
Edith Honan, State attorneys general forced into spotlight on marriage debate, Reuters, June 2, 2014.
- Article highlights the divergence amongst state attorneys general on the issue of defending or refusing to defend their respective state's ban on gay marriage.
Jess Bravin, Gay Marriage Tests State Attorneys General, Wall Street Journal, Mar. 7, 2014.
- Wall Street Journal article looks at the difficult and nuanced issues surrounding a state attorneys general refusal to defend a law or case. In the article, Director James E. Tierney points out that in the past, there have been a number of instances where state attorneys general refused to defend laws that violated constitutional guarantees and protections. In this charged political environment, however, Director Tierney warns that these decisions may become more commonplace in other contexts besides gay-marriage.
Juliet Eilperin, State officials balk at defending laws they deem unconstitutional, Washington Post, July 18, 2013.
- The article offers an overview of the issue in the context of state laws prohibiting gay marriage. Director James E. Tierney was interviewed for this article and provides his views regarding an attorney general's refusal to defend a law or case: "'The simple truth is that AG refusal to defend happens all the time,' Tierney, who directs the National State Attorneys General Program at Columbia Law School, wrote in an e-mail. 'Legislatures are comprised in most states by non-lawyers trying to do the right thing, but they do not understand the complexity of constitutional limits. They are advised, but often plunge ahead — both liberals and conservatives — and make constitutional mistakes. It then falls to the AG to clean this mess up.'"
Meagan Hatcher-Mays, NRO Accuses VA Attorney General of Playing Politics for Refusing to Defend Same-Sex Marriage Ban, Media Matters.org, Feb. 5, 2014.
- Media Matters article responds to National Review online piece accusing Virginia Attorney General Mark Herring of politicizing the office of attorney general by refusing to defend the state's ban of gay marriage. The article cites to other instances where state attorneys general refused to defend laws outside of the gay marriage context.
Attorneys General Nondefense - Beyond the Gay Marriage Context:
Arkansas attorney general says secretary of state office to defend voter ID law in hearing, Associated Press, Sept. 24, 2014.
- Arkansas Attorney General Dustin McDaniel has agreed to allow Arkansas' Secretary of State’s office to argue an appeal before the Arkansas Supreme Court on the constitutionality of the state’s voter ID law. The Attorney General will continue to provide counsel to the state’s Board of Election Commissioners.
Indiana backs off defense of new immigration law, Indianapolis Business Journal, July 31, 2012.
- In 2012, Indiana Attorney General Greg Zoeller announced that his office would no longer defend portions of the state's new immigration law, since U.S. Supreme Court deemed similar provisions of an Arizona statute unconstitutional in the case Arizona v. United States
Salvador Rizzo, Chris Christie's administration declines to defend gun laws in court battle, The Star-Ledger, Dec. 30, 2013.
Laura Vozella, Cuccinelli won't defend school take-over law championed by McDonnell, Washington Post, Sept. 3, 2013.
- Former Virginia Attorney General Ken Cuccinelli announced that his office would not defend state legislation allowing the state government to take over failing Virginia schools. Attorney General Cuccinelli believed the legislation as adopted was unconstitutional.
Marty Lederman, Commentary: The return of the Robert Bork “dueling briefs” strategy: Buckley v. Valeo, Susan B. Anthony List, and Ohio Attorney General DeWine, SCOTUSblog, (Mar. 17, 2014).
Failure to Defend Within the Federal Context:
National Association of Attorneys General 2014 Winter Meeting, Address by United State Attorney General Eric Holder.
- U.S. Attorney General Eric Holder addressed state attorneys general on the second day of NAAG's annual winter meeting, which took place on February 24-26, 2014 in Washington D.C. During his remarks, Attorney General Holder discussed his office's decision to no longer defend the federal Defense of Marriage Act ("DOMA"). According to Holder, although a decision not to defend individual laws must be exceedingly rare and reserved for truly exceptional circumstances, he believes that such action was warranted with DOMA and should be taken by state attorneys general with challenges to state laws which ban gay marriage. Such laws create what Attorney General Holder believes are suspect classifications.
- To view the video, please click here (Discussion begins around 10:00)
Curt A. Levey and Kenneth A. Klukowski, Take Care Now: Stare Decisis and the President's Duty to Defend Acts of Congress, 37 HARVARD J. L. & PUB. POL. 2, (2014).
Neal E. Devins and Saikrishna Prakash, The Indefensible Duty to Defend, 112 COLUMBIA L. REV. 507 (2012).
- ABSTRACT: Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation authority. Third, our analysis of refusals to defend shows that the duty to defend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its supposed benefits arise from getting the courts to opine on the constitutionality of laws. But courts typically have that opportunity as a result of executive enforcement of a law it believes is unconstitutional. Nothing further is gained by having the executive voice insincere and halfhearted arguments when others sincerely can advance strong ones. Or, we should say, nothing except enhancing the DOJ in the eyes of Congress and the courts at the expense of the President’s constitutional vision, which is what the duty to defend is all about.