In the initial reading of Eric Holder’s strange advice to the National Association of Attorneys General on the duty of AGs to defend current law on behalf of the voters, legislature, and executive branches, it sounded as if the US Attorney General endorsed executive-branch nullification. However, it turns out Holder wasn’t quite finished. Byron York reports that Holder returned to the dais later in the event — after the press cleared out — to admit that the laws do have to be defended … but that defense could be outsourced:
Horne brought up the California marriage case in the Supreme Court last year. Because the attorney general of California decided not to defend the state’s referendum defining marriage as the union of one man and one woman, the Supreme Court found that no one had standing to litigate the matter, and thus declined to make a decision clarifying the issue for the nation. Does Holder want that to happen again? “I asked [Holder] if he would agree that if no one else has standing, then the attorney general should make sure that someone is able to defend the case,” Horne told me last night.
To the surprise of some listeners, Holder said yes — someone should defend a state’s marriage laws in court, and it is the attorney general’s job to make that happen. “He agreed that if there is no one else with standing to defend it, then the AG should make sure that somebody defends it,” Horne said. That would mean at the very least that the state attorney general would hire a private attorney to defend the law — an option Holder approved.
So the full version of Holder’s position on one-man, one-woman marriage laws is: State attorneys general should not defend them, but they should hire private lawyers who will. It was a much more nuanced opinion than what was reported in the headlines. And it left some attorneys general pretty unhappy. They have sworn to uphold the laws and constitutions of their states, and there has been no Supreme Court decision invalidating those state laws and constitutions. So they should just make a judgment on their own not to defend?
“It’s troubling to have the attorney general advise you that you can ignore your oath to uphold and defend the constitution and laws of your state,” said Luther Strange, the attorney general of Alabama, who was at the meeting. “We certainly don’t advise him how to enforce federal laws, how to do his duty — so that was a little unusual, to say the least.”
Allahpundit’s reaction remains the best — this is technically true, but possibly even dumber than the initial report indicated. The office of Attorney General exists to represent the state — its government and voters — when challenged in court (and of course in prosecutions). That office exists at no small expense to the voters of those states. Now Holder is telling AGs that they can wash their hands of these cases — and stick voters with the bill for a private defense.
It’s not necessarily unusual to bring in outside counsel, certainly for corporations (who don’t usually keep litigators on salary), and occasionally for public-sector agencies. It might be a little more unusual to see that in an AG office, which presumably has a plethora of capable litigators available for assignment. However, the retention of outside counsel for any legal effort usually comes in response to a gap in skills or specialties, not in a primary area such as defense of existing statutes for an AG. That’s a key part of the job, after all — what the clients (voters) hired the AG to do. Forcing a client to pay for additional counsel just because an attorney doesn’t particularly like the issue should raise significant ethical questions about lawyers who make that kind of choice. The ethical choice would be to resign from the case, or in this context, to resign from the office so that the client can hire an attorney that wants the job.
Besides, attorneys are constantly reminding critics that representing a client does not equate to agreeing with them. Lawyers who represent murderers, rapists, and child abusers point out — rightly — that everyone in America deserves a competent and assertive defense, not just people we like. If that’s the case, then why should AGs get let off the hook from doing their jobs defending laws they don’t personally like, too, especially when the “client” is the democratic process that produced them? That doesn’t mean every law that passes should win in court — I can think of a few gun-control laws that got deservedly overturned, for instance — but the laws deserve a defense at least as much as a murderer or rapist does. And if the AGs involved don’t like that, let them look for another job. So should Eric Holder for offering this advice.
Update: Gabriel Malor wrote about this issue three years ago, but sees the ethical issue a little differently:
Setting aside whether the President can choose not to defend in the courts laws that he believes to be unconstitutional and still meet his obligations under the Take Care Clause, it seems to me there’s a more fundamental problem with his DOMA decision yesterday. He has stated that he (and the Attorney General) believes that DOMA section 3 is unconstitutional and therefore indefensible. But he has instructed Executive agencies to nevertheless continue to enforce this so-called unconstitutional law.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
This split-the-baby approach is unjustifiable. The President has no obligation to enforce unconstitutional laws under the Take Care clause; in fact, I’d say he’s obligated not to enforce unconstitutional laws andthat’s exactly what prior Presidents concluded. President Obama’s waffling—enforce it, but don’t defend it—leads to the same eventual outcome, but only by needless delay and wasteful litigation.