Unleash the AG’s

So this happened last week:

Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them. Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings. Holder’s comments are not customary for a federal attorney general, as they do not frequently instruct their state counterparts on how to do their jobs.

Holder is taking a lot of fire for this this and it’s understandable. An AG’s job, after all, is to represent the state and to defend its laws in the courts. But … after thinking about it for a while, I actually agree with Holder for probably the first time in his entire tenure.

The second part of Holder’s statement is probably the more important: an attorney general should not refuse to defend a state law simply because he disagrees with it. All lawyers are required to argue cases where they don’t like the side they are arguing. Do you think criminal defense attorneys like defending rapists or murderers? They do it because everyone deserves a defense. They do it because it’s their job. An attorney general should defend his states laws even when he doesn’t like them because that’s his job: to represent the state.

However …

There is one exception, and that is when the attorney believes that the law involved is unconstitutional. In that case, I would posit that not only should an AG not defend a law he believes is unconstitutional. In some cases, he should argue against it.

I know that sounds like a recipe for chaos and I think this power should rarely be invoked. DOMA, for example, was of questionable constitutionality and I think, in that case, the Obama Administration should have stood by it. But when an Administration believes that a law is a blatant violation, should they not defend our liberty in court?

I’ll admit that this is an outgrowth of my view of how our government is supposed to work. Far too often, the judgement of whether a law is constitutional is left the Courts. But it is the sworn obligation of all branches to defend our liberty. The Courts should bounce bad laws, yes. But they don’t always, as the Kelo abomination demonstrated. In those cases, we need the other branches to defend our liberty. We need them to stick up for us when the Courts won’t.

Congress and State Legislatures should not pass laws that they believe are unconstitutional. The President and the Governors should veto unconstitutional laws and refuse to use powers they believe are unconstitutional, even if the courts approve them (warrantless wiretapping, for example). And even if the AG does enforce bad laws, for the sake of order, I have no problem with him arguing that the law is unconstitutional (there will never be a dearth of attorneys willing to argue in favor of the government).

I hate to play the game of If I Were President, but I think it’s relevant here. Just last week, I wrote about the vile unconscionable thing that is asset forfeiture. Should not a President order his Justice Department to end asset forfeiture? It is a choice, not a requirement, after all. And should he not have an AG go into Court and argue that this violates the people’s rights? Why must the engine of government justice always be turned against the citizen and against his liberty?

It’s a little shakier when you get down to the state level, where you could argue that the state AG’s should defend a law even as the federal lawyers argue against it. Or you could argue they could resign on principle. There is a danger of opening a can of worms and politicizing the court process even further. I see that.

But I don’t think this issue is as clear-cut as a lot of people want to make it. I’m not sure gay marriage laws pass the threshold, but I don’t think it’s ridiculous to argue that a state can realize it is in the wrong and refuse to defend an unconstitutional law.

Comments are closed.

  1. Iconoclast

    There is one exception, and that is when the attorney believes that the law involved is unconstitutional.

    I disagree. His job is to enforce all of the laws. Period. If he truly believes a given law is unconstitutional, he has the right to speak out against it, but he doesn’t have the right to not enforce it. That leads to chaos and anarchy. If he feels so strongly about a given law, he should resign in protest of that law, not simply refuse to do his job while collecting (taxpayer) money to do so.

    Far too often, the judgement of whether a law is constitutional is left the Courts.

    But that’s how it’s supposed to work, according to the COTUS. We already have an Executive branch that’s usurping the powers of the Legislative branch, do we need more of the same, an Executive branch usurping the powers of the Judicial branch? How can we have Checks and Balances of the Executive branch takes on All Power?

    No, liberalism and progressivism have undermined the COTUS enough already. It’s so bad that we don’t even think twice about legislation that is introduced by the Chief Executive. We so often hear about how Obamacare is Obama’s “signature legislation”, but the POTUS is the Chief Executive, not the Chief Legislator. This idea that an Administration should be measured by how much legislation it introduces and passes is an affront to the Constitution, and a main characteristic of how tainted it has become thanks to the cancer of progressivism.

    Checks and Balances, people. Checks and Balances. Both of which are an affront to progressivism/liberalism, which is reason enough to advocate for them.

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  2. Hal_10000 *

    So if the Courts rule that, for example, it’s perfectly legal to seize someone’s property and give it to a rich developer, that’s it? All three branches are sworn to defend the Constitution and I think all three have a positive obligation to act, in in their separate ways. They do this either by not passing laws that are unconstitutional (Congress), vetoing unconstitutional laws or refusing to use unconstitutional powers (the executive) or vacating them in court (SCOTUS). I think an AG should usually argue for the law, but not in cases of extreme violation of Constitutional rights (which I don’t think gay marriage bans are).

    Let’s say that Congress passes a law forbidding people from criticizing Congress. Would not the President have an obligation to veto it? Would he not be justified in refusing to enforce it? Should we not hope to hell that Holder would to Court and argue that it’s unconstitutional?

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  3. Iconoclast

    So if the Courts rule that, for example, it’s perfectly legal to seize someone’s property and give it to a rich developer, that’s it?

    what does the COTUS say on that matter? Does the COTUS say, “that’s it”?

    All three branches are sworn to defend the Constitution and I think all three have a positive obligation to act, in their separate ways.

    Yes, absolutely. But I do not believe that entails not doing their Constitutional duties they swore to uphold, or doing so selectively. If mere men can pick and choose what parts of the Constitution they will abide by, then the document becomes meaningless.

    They do this either by not passing laws that are unconstitutional (Congress), vetoing unconstitutional laws or refusing to use unconstitutional powers (the executive) or vacating them in court (SCOTUS).

    Yes, each branch has its specific powers, and should not usurp the powers of the other branches.

    I think an AG should usually argue for the law, but not in cases of extreme violation of Constitutional rights (which I don’t think gay marriage bans are).

    But the AG is part of the Executive branch, not the Judicial. Like I said, if mere men can pick and choose, the COTUS isn’t worth the paper it’s printed on.

    We already have a President doing exactly that, picking and choosing what parts of the law he will enforce, and rewriting his “signature legislation” according to political whim. It isn’t up to the Executive branch to decide whether a law is Constitutional — that power is reserved to the Judicial branch.

    Let’s say that Congress passes a law forbidding people from criticizing Congress. Would not the President have an obligation to veto it?

    Absolutely, and that is a specific power the COTUS grants him.

    Would he not be justified in refusing to enforce it?

    Nope, not if he or one of his predecessors signed it into law, no. Like I said, the power to decide Constitutionality is reserved for the Judicial branch, not the Executive. If we ignore this, the COTUS becomes just another worthless rag (which it already may be, but I digress).

    If we don’t like a law, we change it or overturn it via due process. We don’t just willy-nilly decide not to enforce it because we don’t like it, regardless of how legitimate that dislike may be.

    Either we are a Constitutional Republic, or we are not.

    Should we not hope to hell that Holder would to Court and argue that it’s unconstitutional?

    Yes, like I said, he is free to speak out against it, but he is not free to ignore it or not enforce it. Political Party doesn’t matter. What matters is what the COTUS says.

    Or that is what should matter…

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  4. Seattle Outcast

    I have to agree with Iconoclast – people need to do their damn job, and not try to do the job of others because it makes their job “easier.”

    We set up the separation of powers for a reason, but everyone seems to think that because other people will muck around with their pet project or political cause, they should circumvent the system.

    The answer to this attitude is “Not just no, but hell no”

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  5. AlexInCT

    I disagree. His job is to enforce all of the laws. Period. If he truly believes a given law is unconstitutional, he has the right to speak out against it, but he doesn’t have the right to not enforce it. That leads to chaos and anarchy

    Already there if you go by the fickle, politically motivated, enforcement of the law by the DOJ.

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  6. Hal_10000 *

    I disagree. His job is to enforce all of the laws. Period. If he truly believes a given law is unconstitutional, he has the right to speak out against it, but he doesn’t have the right to not enforce it

    See, but that’s already problematic. We have a zillion laws on the books and a zillion crimes committed every day. Every prosecutor in the country uses his discretion over what cases he prosecutes. They can emphasize some laws or de-emphasize others or decline to prosecute a case where the law had been technically violated by accident. Unless you want cops clubbing everyone who jaywalks we can’t possibly just enforce the law, period. There’s nothing wrong with prosecutorial discretion. Mindless enforcement of laws is for robots, not human beings.

    In this case, I see an AG arguing against a law (or refusing to argue for it) AS a check and balance. It’s the executive balancing the legislative, with the judiciary “breaking the tie” if you will.

    The violations of the Constitution we worry about – executive orders and the like — are where the President assumes new powers or does things Congress has not authorized. But I don’t think you can apply the same logic to him refusing to use a power since the purpose of the Constitution is to protect our liberty, not to empower government.

    You’re chasing the Constitution into a corner, devoting yourself so rigidly to the idea that the courts are the one and only guardians of our liberty and the executive must needs mindlessly enforce the laws that Congress passes, no matter how vile and unconstitutional those laws may be. I think this discretion should only be used in extreme circumstances, should as the aforementioned ban on criticizing Congress. But I can’t countenance the idea of an executive branch mindlessly enforcing a unconstitutional law because *shrug* the other two branches said it was OK. ALL THREE branches have to agree before our liberty is violated.

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  7. Miguelito

    We’re supposed to be a nation of laws, not of men choosing which laws to enforce of not. If a AG thinks a law is wrong, then they should be going to the legislature and courts to clarify/remove/whatever the law. Not just decide they’re not going to bother.

    Unless you want cops clubbing everyone who jaywalks we can’t possibly just enforce the law, period.

    I’d almost rather they be forced to actually follow every single freaking law to the letter… it would likely wake people up rather quickly to how much bullshit is on the books in the first place and push to remove most of it.

    When did we get into this situation where the “effectiveness” of legislatures started being measured on how many laws they passed too?

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  8. Seattle Outcast

    To say nothing of Holder massively overstepping the bounds of his office by doing this – not that anyone in the current administration has any clue….

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  9. Iconoclast

    We have a zillion laws on the books and a zillion crimes committed every day. Every prosecutor in the country uses his discretion over what cases he prosecutes.

    This is equivocation; there is a world of difference between choosing which cases to prosecute in practice, and choosing which laws to enforce in principle. I will be the first to admit that we have far too many laws on the books, but that is a completely separate issue.

    Unless you want cops clubbing everyone who jaywalks we can’t possibly just enforce the law, period.

    Again, this is equivocation, along with goal post moving. Like I already said, having a government that produces too many laws to effectively enforce is definitely a problem, but this has nothing to do with an individual government employee willy-nilly choosing not to enforce a given law because he doesn’t like it for some reason.

    Mindless enforcement of laws is for robots, not human beings.

    More equivocation; we’re not talking about “mindless” enforcement. We’re talking about cherry-picking which laws will be enforced, based on what amounts to whim. A given law may indeed be discriminatory, but that should be debated and argued. Perhaps there is some angle that most haven’t thought about, but it needs to be discussed. In fact, if the process for creating a law was working correctly, it would stand to reason that it was debated, including whether or not it would past Constitutional muster. The point is that it takes many people to get a law onto the books — by what right does an individual public servant get to second-guess all of the people who were involved with getting the law onto the books in the first place?

    The answer is that the public servant doesn’t have that right.

    In this case, I see an AG arguing against a law (or refusing to argue for it) AS a check and balance.

    Again, we’re not talking about whether an AG can argue against a law, but whether he has the right to not enforce it. Which, in my view, he doesn’t. Like I said before, if he feels so strongly about it, he should resign in protest, instead of accepting money for not doing his job.

    You’re chasing the Constitution into a corner, devoting yourself so rigidly to the idea that the courts are the one and only guardians of our liberty and the executive must needs mindlessly enforce the laws that Congress passes, no matter how vile and unconstitutional those laws may be.

    This is nonsense. For starters, it’s the Executive branch that signs bills into law in the first place — if the Chief Executive has a problem with a bill, he should veto it. That is in accordance with the Constitution. I have no idea where this nonsense about the Courts being the “only guardians” comes from, as I have already acknowledged that all three branches should use their granted powers to preserve liberty. The point is that we have an Executive branch trying to usurp the powers of the other two branches, which is the path to tyranny, in my humble view.

    I think this discretion should only be used in extreme circumstances, should as the aforementioned ban on criticizing Congress.

    Well, of course, but then, who decides whether a set of given circumstances qualifies as “extreme”. Therein lies the Achilles heel of your argument, as the individual public servant would be the one deciding.

    But I can’t countenance the idea of an executive branch mindlessly enforcing a unconstitutional law because *shrug* the other two branches said it was OK.

    And again, one person cannot be making the decision whether a law, Constitutionally passed, is in fact unconstitutional. That power does reside within the Judicial branch. Not the Executive, and not the Legislative. Your argument seems to assume that “vile and unconstitutional” laws are passed with regularity. Hell, maybe they are, but again, that is a different problem.

    I repeat, there is due process for dealing with laws that are on the books but shouldn’t be, for whatever reason. And sure, sometimes parts of the system fail (Kelo Decision, etc.), but that is no reason to abandon the system, which is what cherry-picking which laws will be enforced on principle amounts to.

    I am among those who absolutely despise Obamacare and all it represents, but I have even more animosity towards a President who picks and chooses which aspects of his own signature legislation he will enforce, and when said enforcement may commence. As far as I am concerned, Obamacare should be enforced as written, regardless of how “vile and unconstitutional” it may be (bad COTUS decision notwithstanding), but obviously that is politically disadvantageous, so Obama single-handedly chooses to decide what gets enforced and when, by delaying aspects of the implementation, violating the Constitution in the process. This is the stuff of Banana Republics, not a Constitutional Republic. What Eric Holder is doing is essentially the same thing, just on a different, less blatant scale. Gay marriage is a hot-button topic of our age, and there are political points to be scored, Constitution be damned.

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  10. hist_ed

    Gotta say I am with Iconclast et al on this. The job of a state prosecutor is to represent the people of his state in court-criminal or civil. The solution for a prosecutor who thinks that a law is unconstitutional is resignation.

    At what level, Hal, do you think it stops? What if an assistant AG assigned to a particular case thinks something is unconstitutional but the AG disagrees? Can the assistant AG decline to enforce? No because the assistant AG takes their instructions from their boss, the AG. And the AG takes their instructions from their boss, the people of his state.

    And really, what do you think Holder (or you) would say about an AG who truly believes that life begins at conception and that the Constitution therefore extends all its protections to embryos? Should that AG decline to prosecute someone who murdered an abortionist because there was a defense argument? We can go through a bunch of hypotheticals here, but ind the end, allowing AGs this discretion is a huge blow to the separation of powers.

    I guess I would say that there are 50 arguments here because every state defines the role of their AG in their own constitutions and statues. What I hope we all can agree with is it is not the role of the US AG to tell state AGs how to do their jobs.

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  11. Hal_10000 *

    Let’s go back to the beginning. This discussion started with whether AG’s should defend unconstitutional laws in the appellate courts. That’s a little different from refusing to enforce a law. Regardless of my feelings on the latter, I still don’t think an AG should be obligated to go into court and zealously argue for a law he knows to be unconstitutional. That’s the balance I see — that the executive, if its veto is overidden, can take its case to the Courts. Again, the first amendment example. If Congress passed a law that forbad criticism of the government, I would be furious if the Obama Administration defended it in Court. Even if you say they should enforce it, why should they be obligated to argue in favor of it and pretend it’s constitutional?

    And I suspect that if this weren’t Holder, I’d get a lot more agreement. Do you think everyone would think it was fine if Romney sent his attorney general to defend the constitutionality of Obamacare to SCOTUS? If the Democrats passed an invasive gun control law, would you want a Republican AG to argue in favor of it in the Courts? The President should be defending our liberty at all points, not arguing against it because 535 fools said it was OK.

    Here’s a question: if you don’t think AG’s should be able to exercise this kind of discretion — either in arguing for a law in court or in enforcing that law — what do you think of the Oath Keepers? These are law enforcement and military people who have signed a pledge that they will refuse to enforce laws they see as unconstitutional. Are the Daily Kos people right? Is the SPLC right? Are these guys a bunch of right wing looney toons who are breaking their oaths and endangering the Republic? Are they not obligated to enforce all the laws and not exercise their own judgement when it comes to them? What’s the difference?

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  12. Iconoclast

    This discussion started with whether AG’s should defend unconstitutional laws in the appellate courts.

    Or, more accurately, it began with Holder telling state AG’s they don’t have to do their jobs if they believe they’re arguing in favor of “unconstitutional” laws, but again, the question is whether a state or federal AG has the authority to deem a law “unconstitutional”. I am saying that they do not have such authority, Constitutionally speaking. If you can show that they do, then the discussion is ended.

    I still don’t think an AG should be obligated to go into court and zealously argue for a law he knows to be unconstitutional.

    He “knows” to be unconstitutional? Knows?

    Again, if an AG has an issue with a law that was passed via due process, then he is second-guessing that process and the people involved, which of course is his right. But that doesn’t give him the right to not do his job. If he has issues with certain aspects of his job, he can either suck it up or get a new job.

    The original article stated:

    Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them.

    Again, the hot-button issue is gay marriage, something near and dear to the liberal agenda, and it appears that the federal AG is advising state AGs to not “defend” laws legally passed in their respective states. But the problem is that these laws aren’t necessarily unconstitutional, and it certainly isn’t up to the state AG to decide whether the state’s respective law is unconstitutional. This is usurpation of power, plain and simple. The federal AG is not authorized to instruct state AGs how to go about doing their jobs. If a state Constitution obligates the AG to “defend all laws” of the state, then the federal AG has no business trying to undermine the state’s Constitution.

    Again, it begs the question, by what right does an AG question the Constitutional authority of a Legislating body who debates, argues and ultimately passes a bill, the Executive who signs it into law, and the Judiciary that declines or has yet to rule a law unconstitutional? The point is that we either follow due process, or we abandon the pretense of doing so and do whatever we want, based on political whim, Constitution be damned.

    Again going back to Obamacare, I utterly despise the law because I am convinced it’s doing great harm to our nation, but I do recognize that it is a Constitutionally passed law that was upheld by the SCOTUS, and is therefore the law of the land, and take issue with a President who ignores the ramifications of that so he can rewrite the law willy-nilly for political gain. This is wrong. And it’s also wrong for an AG to instruct state AGs how to do their jobs, by telling them then can (should) ignore laws that conflict with the liberal agenda under the bald-faced assumption that such laws are unconstitutional.

    And it would be just as wrong if it were Republicans doing it.

    If these law are unconsititutional, then take them before the state Supreme Courts and have them decide. Follow due process. If you can’t be bothered, then you have no business in government (“You” being the likes of Eric Holder and Barack Obama).

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  13. InsipiD

    Be afraid of choosing when to enforce a law. It’s a baby step from there to choosing against whom to enforce it, and giving legitimacy to selective enforcement. It’s already what happens, but it would be better if at least it wasn’t a respected work strategy.

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  14. Hal_10000 *

    Again, it begs the question, by what right does an AG question the Constitutional authority of a Legislating body who debates, argues and ultimately passes a bill, the Executive who signs it into law, and the Judiciary that declines or has yet to rule a law unconstitutional?

    By the authority of the governor or President who heads the executive branch.

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  15. Hal_10000 *

    Again going back to Obamacare, I utterly despise the law because I am convinced it’s doing great harm to our nation, but I do recognize that it is a Constitutionally passed law that was upheld by the SCOTUS, and is therefore the law of the land, and take issue with a President who ignores the ramifications of that so he can rewrite the law willy-nilly for political gain. This is wrong.

    So if Romney had won the election and the Obamacare case had come up to SCOTUS while he as President, you think his AG should gone to the Supreme Court and argued that Obamacare was Constitutional?

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  16. Hal_10000 *

    You guys are confounding multiple things here:

    1) not enforcing or selectively enforcing laws you don’t like
    2) rewriting laws on the fly a la Obamacare
    3) not defending a law in court because it violates our constitutional rights.

    These are not the same thing. Two of these expand the power of govt, the third restrains it.

    My philosophy here is that our constitutional rights are under constant assault. Our leaders would burn the Bill of Rights tomorrow if they could. Given this reality, I want all three branches of government to zealously defend our liberty at any and all times. Congress is the beginning of that process. The Supreme Court is the end. But in the gap between them, you have the executive branch. And in my mind, they should be constantly looking at the behavior of government to make sure our liberty is protected.

    If Holder were telling AG’s to not enforce laws they don’t like, I would agree with the criticism. But that is not what he said:

    He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings.

    We know have multiple courts that have decided that gay marriage bans violate equal protection provisions in the constitution. Should Holder not tell the AG’s to be cognizant of this? If he had told AG’s they should not defend gun control laws that violate the Heller decision, I suspect most of the people criticizing him would agree. We’ve have multiple states drop defenses of laws when it became clear that those laws were invalid under Heller. Sodomy laws were let go after Lawrence (although I think they should be repealed as well). Are those AG’s rewriting the law? Should they go to the courts demanding that the courts uphold their sodomy laws when the courts have already struck them down?

    He “knows” to be unconstitutional? Knows?

    It just as valid for the executive branch to judge the constitutionality of a law as the Courts. Necessary, in fact. Would that we had a President who would tell the IRS and DEA not to seize people’s property without trial just because the Supreme Court says they can.

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  17. Iconoclast

    By the authority of the governor or President who heads the executive branch.

    And where does the President or Governor get that authority? Thin air? Whole cloth? Where in the COTUS is the President given the authority to give his AG the authority to “question the Constitutional authority of a Legislating body who debates, argues and ultimately passes a bill, the Executive who signs it into law, and the Judiciary that declines or has yet to rule a law unconstitutional”?

    Remember that the POTUS/Governor (or predecessor) signed the bill into law. That power to sign a bill into law is explicitly granted by the COTUS and/or state Constitution. Where is the power to second-guess the system and its participants explicitly granted? Where is the power of selective enforcement explicitly granted?

    So if Romney had won the election, you think his AG should gone to the Supreme Court last year and argued that Obamacare was Constitutional?

    I don’t understand this question. The SCOTUS already made such a ruling prior to the election. But yes, I would expect Romney’s AG to enforce the law, until such time that Romney himself signed its repeal into law.

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  18. Hal_10000 *

    Again, I’m not talking about selective enforcement. I’m talking about arguing a case before the Court where 1) the administration has changed since the law was enacted; 2) the veto was over-ridden or 3) changing legal precedent has made it likely that the law is unconstitutional.

    I don’t understand this question. The SCOTUS already made such a ruling prior to the election. But yes, I would expect Romney’s AG to enforce the law, until such time that Romney himself signed its repeal into law.

    No, I’m asking a different question. Let’s say the SCOTUS case came up AFTER the election and Romney had won. So does his AG now go before the Court and argue that Obamacare does not violate the commerce clause and that it is perfectly constitutional?

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  19. hist_ed

    “So if Romney had won the election and the Obamacare case had come up to SCOTUS while he as President, you think his AG should gone to the Supreme Court and argued that Obamacare was Constitutional?”

    Yes.

    There is, I suppose, one other out. An AG could appoint someone else to defend a law while recusing themselves.

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  20. Xetrov

    Why does an Attorney General, or Department of Justice, or anyone in the Executive branch have cause to argue a law is or is not constitutional before the SCOTUS? I’m confused by that. Their job is to enforce the laws as written. Not interpret their constitutionality.

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  21. Hal_10000 *

    Cato has a good look at this:

    http://overlawyered.com/2014/03/ags-decline-defend-state-laws/

    money quote:

    In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.

    So this is not unprecedented. As Olson notes, AGs take an oath to defend the Constitution (in some states, both state and federal). Pushing a legal position that is unconstitutional is violating your oath, isn’t it?

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  22. Hal_10000 *

    Why does an Attorney General, or Department of Justice, or anyone in the Executive branch have cause to argue a law is or is not constitutional before the SCOTUS? I’m confused by that. Their job is to enforce the laws as written. Not interpret their constitutionality.

    Uh, that’s one of the many jobs of the justice department, usually falling on the solicitor general. In cases where he’s defending the constitutionality of the law, someone has to represent the government.

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  23. Iconoclast

    We know have multiple courts that have decided that gay marriage bans violate equal protection provisions in the constitution. Should Holder not tell the AG’s to be cognizant of this?

    Were those courts state or federal? A ruling made by one state’s Supreme Court does not apply to any other state, and the federal government has no place trying to make it apply. Holder doesn’t necessarily need to tell state AGs anything at all.

    No, I’m asking a different question. Let’s say the SCOTUS case came up AFTER the election and Romney had won. So does his AG now go before the Court and argue that Obamacare does not violate the commerce clause and that it is perfectly constitutional?

    By now y’all should know how I feel about hypothetical scenarios, but sure, to answer the question, the job of the AG is to represent the state in legal matters and in court. As such, I would expect him/her to defend the law being argued. If he is opposed, for whatever reason, that strikes me as being a conflict of interest. He should resign as AG and join the team arguing against the law.

    If the COTUS or if a state Constitution explicitly grants an AG the power to not defend a Constitutionally-passed law, that’s fine. If the Constitutions are silent on the matter, I lean toward a strict interpretation, wherein nothing explicitly granted is ever assumed. If Constitutions are silent, the power is not granted. But that is admittedly my personal view.

    Pushing a legal position that is unconstitutional is violating your oath, isn’t it?

    Well, this again begs the question: Who decides Constitutionality? In my view, that decision is explicitly reserved for the Judicial branch, not the Executive branch. If the Courts have decided that a given law is unconstitutional, then the law is irrelevant, effective immediately.

    So this is not unprecedented.

    Hmm, this rather tells me that Holder’s comments are superfluous, then. If AGs are already arguing against certain laws based on precendent, then that strikes me as a different matter than Holder telling AGs not to defend laws they simply think are unconstitutional.

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  24. Hal_10000 *

    Were those courts state or federal?

    Both.

    Well, this again begs the question: Who decides Constitutionality? In my view, that decision is explicitly reserved for the Judicial branch, not the Executive branch. If the Courts have decided that a given law is unconstitutional, then the law is irrelevant, effective immediately.

    And I think this is where we disagree. I think all three branches need to be in constant state of defending our liberty. I think our rights are too precious to be at the mercy of five Harvard/Yale law professors.

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  25. Iconoclast

    And I think this is where we disagree. I think all three branches need to be in constant state of defending our liberty.

    As do I, provided that doesn’t entail a given branch usurping the powers of the other branches.

    I think our rights are too precious to be at the mercy of five Harvard/Yale law professors.

    Law can be repealed, regardless of court rulings.

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