Who Defends the State in Legal Matters
For constitutional reasons, the absence of a federal obligation for attorneys general to admit the invalidity of state law makes sense. The federalism of our Constitution, based on the idea that states can control the glorifying impulses of the federal government,44 presupposes that states, through their officials, can challenge the constitutionality of federal laws and treaties. Imposing on state officials the obligation to admit the invalidity of state law or the duty to refuse to defend state law would go a long way toward undermining that control. It would turn any prosecutor into a defender of federal law, forcing them to admit that state laws and constitutions are unconstitutional. Moreover, such a requirement would also require prosecutors to admit that federal laws and treaties take precedence over both forms of state law. States and their officials should be the guarantors of a limited federal constitution, not the primary defenders of federal power through open admissions of federal replacement. Attorneys general must also prepare legal opinions and, therefore, regularly interpret state and federal laws, including whether federal law supersedes state law. Unlike the Attorney General of the United States (who advises only members of the executive branch),89 Attorneys General often provide legal advice to other branches. Most attorneys general write opinions for the legislature and individual legislators;90 some attorneys general also provide opinions to the judiciary.91 In a state (Kentucky), individuals may seek expert advice.92 We do not contend that each state can be clearly placed in one of these categories, or that each state precisely defines the powers and duties of its attorney general. As we explain in Part II, many states are indeed quite difficult to classify.50 In addition, some states may adopt more than one approach that allows attorneys general to recognize the invalidity of state law in the face of a challenge, while providing them with the means to seek a judicial solution in the first instance. And states may choose to hybridize these approaches by requiring the defense of laws that raise issues of individual rights but allow concessions in the face of demands for separation of powers. Or a state could empower its attorney general to challenge the constitutionality of a law only when its powers are at stake. The permutations seem endless.
In summary, we believe that neither the federal Constitution nor federal laws say anything about the powers and duties of attorneys general vis-à-vis the defense of state law. The fact that federal law applies supreme and that attorneys general take an oath to support the Constitution does not stipulate that these officials must recognize the invalidity of state law if their best legal judgment points to that conclusion. Dominance and support do not imply a duty of openness and harmful concessions on the part of prosecutors, including attorneys general. Going forward, we expect more attorneys general to refuse to defend state laws. In the absence of a strong bureaucratic constituency conducive to the duty of defense and the demands of constituencies that abhor certain state laws, attorneys general will increasingly succumb to the temptation to ingratiate themselves with members of their electoral coalition. For better or worse, the duty of defense is likely to become a rhetorical tool that attorneys general will use when they want to defend state law, and reject it in favor of talking about oaths and federal supremacy if they prefer not to defend state law. The acute division among Attorneys General is predictable; The lack of clear laws and the abundance of politics explain the discrepancy. As far as law is concerned, state constitutions and laws generally do not refer to a duty of defense, so duty may often derive (or not) from structural norms or conclusions. In addition, the interaction of federal and state law gives attorneys general considerable leeway. To justify the failure to defend state laws, attorneys general can invoke their oaths in support of federal and state constitutions.8 To streamline vigorous defenses of state law, attorneys general can exploit the feeling that they must present all plausible arguments for their “client,” the state. They can also invoke the rhetoric of the “rule of law” and insist that the choice of state laws to defend is illegal. If you believe you have credible evidence of violations of state or local laws, you can contact your state or local law enforcement agencies.
The contours of what constitutes a defense of the law of the state – and implicitly a non-defense of the law of the state – are hardly self-evident. The duty to defend and its antipode, the duty to attack, can be understood as a continuum of attitudes. On the one hand, there would be a duty to vigorously defend the validity of State law against requests for substitution, even in the face of legal opinions that appear to invalidate State law.