Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys general has a duty to defend state law against state and federal challenges, while a second group has no duty to defend state law in such scenarios. A third cohort of attorneys general has a power (and in some cases a duty) to attack state statutes of dubious validity. They may (or must) proactively file suit to obtain judicial resolution of constitutional questions. Given that these duties vary across the states, politicians (including attorneys general) who blithely conclude that all state attorneys general must defend all state laws or, conversely, that all may refuse to defend whenever they believe a state law is unconstitutional evince a lamentable indifference to the power of states to craft an office that suits their particular needs. As the same-sex marriage debate reveals, categorical statements about whether state attorneys general must (or must not) defend bars on same-sex marriage are usually little more than self-serving sound bites from elected, politically ambitious attorneys general, intended for constituents focused on policy outcomes rather than legal questions. With Democrats and Republicans squarely divided on issues like same-sex marriage, gun control, and campaign finance, we predict that attorneys general will increasingly seek political advantage by refusing to defend (or insisting on the defense of) laws that divide the parties. We also foresee that failures to defend will be especially likely to occur in states where the attorney general is of a different political party than the governor, legislature, or the preceding attorney general.
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting...
Constitutional review is the power of a body, usually a court, to assess whether law or government action complies with the constitution. Originating...
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
The United States has granted reparations for a variety of historical injustices, from imprisonment of Japanese Americans during the Second World War...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
In Poland, Venezuela, Rwanda, and several other countries, governments have in the past years altered basic rules of their constitutional system to...
In Chile, many commentators, academics and political leaders have spent years arguing that the limited nature of the social rights in the national...
In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common...
When federal judges are called on to adjudicate separation-of-powers disputes, they are not mere arbiters of the separation of powers. By resolving a...
Gender equality matters in the global public law academy for at least three reasons: the production of diverse scholarship, and substantive equality...
Ethnographic approaches are not as widely practiced among constitutional scholars as they probably should be. Some may harbor perfectly reasonable...
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court distinguished between different kinds of reliance interests — some that would...
Whether the Constitution grants the President a removal power is a longstanding, far-reaching, and hotly contested question. Based on new materials...