Speaking to The New York Times ahead of his address to a group of state Attorneys General on Tuesday, US Attorney General Eric Holder stated in no uncertain terms what his opinion is regarding any possible obligation for public officials to defend marriage statues and constitutional amendments with which they disagree:
Attorney General Eric H. Holder Jr. on Monday injected the Obama administration into the emotional and politicized debate over the future of state same-sex marriage bans, declaring in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory.
Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but said that officials who have carefully studied bans on gay marriage could refuse to defend them.
Six state attorneys general — all Democrats — have refused to defend bans on same-sex marriage, prompting criticism from Republicans who say they have a duty to stand behind their state laws, even if they do not agree with them.
As troubling as this precedent may seem, Holder is not exactly breaking new ground here.
The power and duty to enforce statutes is a function of the executive branch, of which the attorney general is a part — and there is a long, albeit less-than-savory, history of the executive branch picking and choosing which statues to enforce and how. Andrew Jackson is famously held to have declared, in response to the Supreme Court decision Worcester v. Georgia (that attempted to prevent what would become known as the Trail of Tears), “John Marshall has made his decision; now let him enforce it!”
More recently, we have seen the phenomenon of “sanctuary cities,” in which local police departments have been instructed not to actively enforce federal immigration laws. California’s ban on same-sex marriage was vacated by the Supreme Court because — despite being passed as a ballot measure by a majority of California’s citizens — the only individuals with standing to defend the law (the governor and the attorney general) refused to do so in court. And of course, the Department of Health and Human Services has not been shy in exercising its authority under the ACA to decide who has to comply with the new health care law and who gets exemption waivers.
While it would be highly unsettling to see this discretionary enforcement or defense of the law become a routine part of our political system it is hard to deny that, in extraordinary circumstances, there is a legitimate use for this practice. If the attorney general of Connecticut, for example, were to refuse to defend that state’s new “assault weapons” law in federal court because he felt it clearly violated the Second Amendment, he’d likely be lauded as a hero by conservatives and libertarians across the land. The knife cuts both way.
What is necessary is some kind of check and balance on this power to ensure that a particular side in a controversial political dispute is unable to win by default simply by virtue of controlling the Office of the Attorney General.
The first and most obvious measure is the one that the people already possess: the power of the ballot box. If Democratic AGs start to abuse their positions, Republicans and conservatarian activists need to get into the habit of calling them out and explaining on the campaign trail why this is an unhealthy trend — whether or not one disagrees with the results. Politicians rarely follow a course of action if they feel it is likely to get them booted out of office.
A second measure, one that was recently proposed in the Virginia House of Delegates (before being defeated by the Democratic-controlled State Senate), would be to pass legislation to expand the definition of which parties possess standing in court to defend the constitutionality of laws when the executive branch declines to do so. In Virginia’s case, the proposed law would have allowed “General Assembly, the House of Delegates, the Senate of Virginia, or a member of the General Assembly… to represent the interests of the Commonwealth in a proceeding in which a provision of the Constitution of Virginia is contested or the constitutionality, legality, or application of a law established under legislative authority is at issue.”
While raising its own questions and possible complications, this kind of reasonable reform would assure that controversial laws get a fair hearing on court based on the merits of the legislation itself, and not based on which party happens to control a particular office when the case appears before the bench.