Holder Misunderstands Attorney General’s Duty
Committee for Justice – Is it lawful for a state attorney general to refuse to defend against a court challenge to his state’s law banning employment discrimination against gays if — in the AG’s personal opinion — the law discriminates against Christian employers and violates the core constitutional principle of religious freedom? If you think so, you need not be alarmed by U.S. Attorney General Eric Holder’s remarks this week qualifying the duty of state attorneys general to defend the laws they are sworn to uphold.
In an interview with the New York Times on Monday, Holder declared that
“[S]tate attorneys general are not obligated to defend laws that they believe are discriminatory. Mr. Holder … said that officials who have carefully studied bans on gay marriage could refuse to defend them. … Mr. Holder said when laws touch on core constitutional issues like equal protection, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it.” (quoting the New York Times)
Committee for Justice president Curt Levey explained in a Fox News op-ed yesterday that Holder’s position on the duty to defend is a dangerous one:
“[T]he executive branch’s duty to defend laws is a bedrock principle of our republic. The duty is essential to any democracy, because it makes the executive a servant rather than master of the law, obligating him to abide by the people’s judgment unless and until the courts make a final determination that their judgment is irreconcilable with the constitution. The duty to defend is also essential to our system of checks and balances, which places lawmaking authority in the legislature. … By undermining duly enacted laws enshrining a traditional definition of marriage, Holder and the state attorneys general are attempting to usurp that authority.”
In other words, Holder and like-minded attorneys general are attempting to export Obama’s imperial presidency to the states.
Holder’s rhetoric reveals that he has not given much thought to the duty to defend. Otherwise, he would realize that it makes no sense to say that an attorney general’s duty to defend laws in court must bend “when laws touch on core constitutional issues.” That’s because legal challenges to the validity of laws always involve constitutional issues. Laws properly enacted by the legislature — or directly by the people in a ballot initiative — are, by definition, valid unless found to be unconstitutional.
As Levey and co-author Ken Klukowski point out in their forthcoming article on the duty to defend in the Harvard Journal of Law & Public Policy, “the duty to defend arises only when the constitutionality of a law is challenged … [because] a statute’s legitimacy can only be challenged on a constitutional basis, whether substantive or procedural.” In other words, Holder’s exception for “constitutional issues” would entirely swallow the rule, making the duty meaningless.
The lack of legal analysis behind Holder’s rhetoric is further illustrated by his statement to the Times that “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.” Had attorneys general refused to defend their states’ segregation policies in court, the landmark Brown v. Board of Education of Topeka decision that struck down the Kansas statute may well never have happened. Absent a party with standing to defend the statute, the landmark litigation could not have proceeded. Holder should know that this very concern is one of the reasons why an attorney general’s duty to defend laws is so important.
Moreover, Holder’s attempted analogy between defending segregation and defending a traditional definition of marriage makes sense only if it is clear that the Supreme Court will rule — and virtually all of society will come to agree — that the traditional marriage definition is unconstitutional. However, it is precisely the absence of such a ruling that makes it a dereliction of duty for an attorney general to refuse to defend his state’s ban on gay marriage.
Levey’s February 25 Fox News op-ed can be found here or below.
An attorney general’s job is to defend the law — no exceptions
By Curt Levey
In a speech Tuesday, United States Attorney General Eric Holder endorsed a dangerous and accelerating trend that has seen a half dozen state attorneys general turn against the laws they swore to uphold by siding with plaintiffs challenging their state’s ban on gay marriage.
Last week, Oregon’s Ellen Rosenblum became the latest AG to abdicate her duty to defend state law. And earlier this month, a federal judge struck down Virginia’s traditional definition of marriage after Attorney General Mark Herring refused to defend it.
Herring’s defense of his abdication was typical of these attorneys general. He said he was putting Virginia “on the right side of history.” But the job of an attorney general is law not history, and Herring and the other AGs have failed at that job.
Herring put himself on the wrong side of the Virginia constitution, which bans same-sex marriage, the wrong side of recent Supreme Court rulings and most importantly, on the wrong side of his sworn duty to defend Virginia’s laws.
While he was at it, Herring also violated his ethical obligation to zealously represent his clients — the people of Virginia — who enacted the gay marriage ban through a 2006 ballot initiative.
Whether on the state or federal level, an attorney general’s obligation to defend the laws he is charged with upholding allows no exceptions for moral indignation, predictions about constitutional evolution, or political ambition (Herring is already touting his decision in campaign emails).
The only recognized exception is where a law is clearly unconstitutional in light of existing legal precedent. “That’s not yet the case with state laws banning same-sex marriage,” explains Colorado Attorney General John Suthers.
In rulings last June, the Supreme Court explicitly declined to decide whether states can ban same-sex marriage.
The state attorneys general who are putting political correctness above their duty are following in the footsteps of Attorney General Holder, who announced in 2011 that the Justice Department would not defend the Defense of Marriage Act’s (DOMA) traditional definition of marriage in court because he believes it to be unconstitutional. This despite “little support in Supreme Court doctrine” for Holder’s constitutional interpretation, according to UCLA Law Professor and gay marriage supporter Adam Winkler.
Until Holder’s announcement, U.S. attorneys general of both parties agreed that the Constitution’s command that the president “take Care that the Laws be faithfully executed” includes a duty to defend all but the most clearly unconstitutional laws.
President Carter’s Attorney General, Benjamin Civiletti, emphasized the narrowness of the exception with an example he gave — a law requiring the arrest and imprisonment of all members of the opposition party without trial.
Professor Winkler warns that Holder’s decision “sets a terrible precedent that could well come back to haunt those who are cheering the President’s decision. Don’t be surprised if a President Palin points to Obama’s decision when announcing her refusal to enforce and defend [ObamaCare].”
The Obama administration’s failure to defend DOMA is part of the larger controversy over the president’s alleged failure to faithfully execute federal laws, including ObamaCare, welfare reform and immigration laws. There too, dangerous precedents are being set.
Those who are cheering should consider that the executive branch’s duty to defend laws is a bedrock principle of our republic. The duty is essential to any democracy, because it makes the executive a servant rather than master of the law, obligating him to abide by the people’s judgment unless and until the courts make a final determination that their judgment is irreconcilable with the constitution.
The duty to defend is also essential to our system of checks and balances, which places lawmaking authority in the legislature and — in some states — the voters as well.
By undermining duly enacted laws enshrining a traditional definition of marriage, Holder and the state attorneys general are attempting to usurp that authority.
Similarly, their actions threaten to deprive the courts of their role as the final adjudicators of constitutional challenges, as happened in California when Attorney General Jerry Brown refused to defend the state’s gay marriage ban.
If the executive branch were free to approach each law on the books with a de novo constitutional review, the result would be chaos. Every law would become a question mark upon the election of a new president, attorney general or governor.
Abdication of the duty to defend “will ultimately weaken the legal and moral authority that attorneys general have earned and depend on,” warns Attorney General Suthers. “We will become viewed as simply one more player in a political system rather than as legal authorities in a legal system.”
Given these grave implications, it is remarkable that the actions of Holder and the state AGs have generated so little outrage among the public and media, outside of conservative quarters.
If attorneys general failed to defend other laws governing marriage — say, the requirements for child support — citing their personal view of the constitution, people across the political spectrum would be howling.
The muted response likely reflects just how effective gay marriage advocates have been in politically marginalizing their opponents by portraying them as prejudiced Neanderthals (never mind that President Obama supported a traditional definition of marriage until 2012). Holder and the state AGs are relying on an air of moral superiority to disguise their lawlessness.
What these attorneys general don’t seem to appreciate is that the damage they are doing to the duty to defend cannot be cabined to this one issue. They will live to regret the path they paved for generations of AGs eager to usurp legislative power and advance their careers by failing to defend politically inconvenient laws.
Curt Levey is a constitutional law attorney and the President of the Committee for Justice. He can be reached on Twitter at @Curt_Levey.
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