Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty To Defend
abstract. 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.
authors. Neal Devins is Goodrich Professor of Law and Professor of Government, College of William and Mary. Saikrishna Bangalore Prakash is James Monroe Distinguished Professor of Law & Horace W. Goldsmith Research Professor, University of Virginia Law School. Thanks to Adam Adler, Emily Barnet, Rachel Bayefsky, John Harrison, Jonathan Mitchell, Kevin Newsom, and Kate Shaw for helpful comments and conversations. Thanks to the student participants in the Yale Law Journal’s Contemporary Legal Scholarship Reading Group. Thanks to Jared Kelsen, Kevin MacWhorter, and Alexander Viana for research assistance. Thanks to the wonderful research librarians at the University of Virginia Law School & Paul Hellyer at the William and Mary Law School. We are grateful for summer research grants that funded work on this piece.
Increasingly, state attorneys general1 are declining to defend state laws on the grounds that those laws transgress the federal and state constitutions.2 With their prominent refusals to defend state bans on same-sex marriage, Democratic attorneys general seem to be at the vanguard of the movement.3 But in fact they have good company, for their Republican counterparts have refused to defend other state laws.4
Justifications for these failures to defend state law have been unsophisticated. Attorneys general who have declined to defend state prohibitions on same-sex marriage sometimes have done little more than echo arguments made by U.S. Attorney General Eric Holder in connection with his refusal to defend the federal Defense of Marriage Act (DOMA).5 State anti-same-sex marriage laws are unconstitutional, say these attorneys general, and so defenses of them are unnecessary and perhaps even impermissible.6 Meanwhile, criticism of these nondefenses has been equally shallow. Detractors, including several Republican attorneys general, often have done no more than parrot criticisms leveled against Holder, intoning platitudes that shed little light on the legal questions.7
The acute split among the attorneys general is predictable; the absence of clear law and the abundance of politics account for the divide. When it comes to law, state constitutions and statutes generally do not reference a duty to defend, often leaving the duty to arise (or not) from norms or structural inference. Moreover, the interplay of federal and state law gives state attorneys general great latitude. To justify a failure to defend state statutes, attorneys general can cite their oaths to support the federal and state constitutions.8 To rationalize vigorous defenses of state laws, attorneys general can exploit the sense that they must make any plausible argument for their “client,” the state. They also can invoke “rule of law” rhetoric, insisting that picking and choosing which state laws to defend is lawless.
If law seems to place few clear constraints on the state attorneys general, politics accounts for the divergence between those who emulate and those who shun Holder’s example. State attorneys general have different incentives than attorneys in the Department of Justice (DOJ). As we have argued elsewhere, DOJ attorneys insist upon a duty to defend both to increase their influence in intrabranch legal disputes and to curry favor with the courts by exalting judicial superiority in constitutional matters.9 The duty to defend bolsters the status and independence of DOJ lawyers, and so they cling to it.
In contrast, almost all state attorneys general are elected politicians, and many seek higher office.10 Because they generally are not long-term players before the courts, they are less likely to genuflect before them. They would rather curry favor with those who might back their aspirations for higher elected office. Sometimes an attorney general can endear herself to an electoral block by refusing to defend a reviled state statute. In other contexts, the attorney general’s electoral coalition might insist upon a spirited defense of a controversial statute, particularly when it fought for its passage. These are among the considerations that weigh on attorneys general and that shape their decisions to defend (or not to defend).
We wish to tell a tale of law and politics and, in the process, to shed light on the duty to defend at the state level. With respect to law, we think the current debate obscures vital duty-to-defend questions and pays too little attention to the rich differences found across state constitutions, statutes, bar rules, and norms.11 The debate about state-level duties to defend, because it is so enmeshed with the federal constitutionality of state same-sex marriage bans, has left obscured two related questions. First, do attorneys general have a duty to defend state law, either statutes or constitutions, when there is an alleged conflict with federal statutes or treaties? After all, federal statutes and treaties are no less supreme over state law than is the Constitution.12 Second, must attorneys general defend state statutes when there is an alleged conflict with the state constitution?
We believe that the answers to these questions must be found in state law, as can the resolution of the question whether state attorneys general may (or must) defend state laws from federal constitutional challenge. In other words, state law determines the stance that attorneys general may (or must) take when considering whether one form of law supersedes another. Although federal statutes empower attorneys general in limited ways, they neither impose nor forbid a duty to defend the validity of state law. Much the same can be said of the Constitution. Neither the Supremacy Clause nor the constitutional oath of support details the powers and duties of state officers, including attorneys general. Federal law neither bars states from imposing a duty to defend nor obliges attorneys general to refuse to defend state law.
Yet the federal Constitution is not entirely immaterial. We believe that it implicitly bars states from discriminating against federal law. If state law dictates that an attorney general may (or must) refuse to defend state statutes from state constitutional challenges, then she may (or must) decline to defend state statutes from federal constitutional challenge. This rule against discrimination still leaves states in the driver’s seat when it comes to the duty to defend.13
Looking to actualstate law, we see three general approaches.14 First, some attorneys general have a duty to defend state law. This duty exists even if the attorney general privately believes that some higher law supersedes. As one might expect, this duty plays out differently across the states. Some attorneys general have a relatively absolute obligation, while others face a more nuanced duty.Second, other attorneys general lack a duty to defend. Even when a reasonable defense exists, such attorneys general may decline to defend a state law based on their considered legal judgment that it is more-likely-than-not preempted by a superior law, be it the Constitution, statutes and treaties of the United States, or the state constitution.Third, some attorneys general have power to file suit and seek an authoritative judicial pronouncement on the validity of a state law. For some attorneys general, this is a discretionary authority, a power to be exercised after a consideration of sound policy, resource constraints, and politics. For others in this third cohort, it is a mandatory duty. They must file suit to contest the validity of a state statute when they conclude that a constitution, federal or state, is inconsistent with the statute. In other words, some attorneys general have a duty to attack state statutes of dubious validity, with the courts serving as final arbiters of constitutionality.15
Our political yarn seeks to explain why the duty to defend issue has exploded recently and to predict what is in store for the future. In states with stable political coalitions (what we call red and blue states),16 voter preferences, attorney general priorities, and state law generally align. In these states the duty-to-defend issue rarely will trigger a tempest. Refusals to defend, when they arise, likely will mirror a shift in public opinion and are likely to be popular with the dominant party (for example, the shift to support same-sex marriage in blue states). By contrast, controversies over the duty to defend are most likely to arise in politically volatile “purple” states, where the political and constitutional views of the attorney general are more likely to diverge from those of the legislature or the governor. In purple states, refusals to defend will simultaneously win favor with the attorney general’s political base and spark uproar among her political opponents. Rising party polarization is also a crucial part of the story because in recent decades, Democratic and Republican lawmakers have embraced fundamentally different stances on abortion, same-sex marriage, gun control, and several other issues. Decisions not to defend certain state laws now represent another way to cater to an increasingly polarized base.
Going forward, we anticipate that more attorneys general will decline to defend state laws. Lacking a strong bureaucratic constituency that favors the duty to defend and buffeted by demands from constituent groups who detest some state law, attorneys general will increasingly succumb to the temptation to curry favor with members of their electoral coalition. For good or ill, the duty to defend is likely to become something of a rhetorical tool that attorneys general will trot out when they wish to defend state law and toss aside in favor of talk of oaths and federal supremacy when they prefer not to defend state law.
Part I argues that state law is supreme in defining a state attorney general’s potential duty to defend. Part II surveys state law, revealing a multiplicity of approaches, a pattern hardly unusual in a federal system. Part III discusses the differing incentives of the attorneys general and their federal counterpart. Part IV speculates about the future of the duty to defend at the state level.
Each attorney general is bound by two legal regimes—federal and state. Theoretically, either regime might grant an attorney general discretionary power to acknowledge the invalidity of state law when confronted with a legal challenge to its validity. Either might compel attorneys general to defend (or refuse to defend) state law. Yet despite the possibility that federal law might have something to say about state-level duties to defend, we conclude that in practice, state law is supreme when it comes to the powers and duties of state attorneys general. The authorities and obligations of attorneys general arise almost entirely from state law, and federal law plays but a minimal role.
At the outset we note that the question whether a state attorney general has a duty to defend state law is more intricate than the question whether the federal executive has a duty to defend federal statutes. While only the Constitution supersedes inconsistent federal statutes, state law must contend with more species of superior law. Besides the federal Constitution, federal statutes and treaties also may invalidate state law. Additionally, in the case of state statutes, state constitutions trump as well. At the state level, the duty-to-defend issue must be considered with respect to each type of superior law.
As a conceptual matter, federal law might empower or oblige state officers in a variety of ways. In fact, however, neither the Constitution nor federal statutes empower or oblige attorneys general to concede the invalidity of a challenged state law.17 We first discuss authority—whether federal law grants attorneys general a discretionary power to concede the invalidity of state law. Then we turn to duty—whether federal law obliges attorneys general to concede the invalidity of state law.
We begin with the Constitution. Although Article I, Section 10 mentions certain actions that the states may take with congressional approval, it manifestlylimits states rather than empowering them: each clause begins, “No state shall . . . .”18 Rather than granting power, it assumes its existence and proceeds to limit it.19 Moreover, though the Constitution mentions high state officials (judges,20 legislators,21 and “the executive Authority”22) and their roles in the federal system, it never mentions attorneys general in particular, much less grants them any power. We therefore believe that the Constitution is indifferent to whether a state has an “attorney general” at all. We further suppose that the Constitution is generally agnostic about the powers of attorneys general, just as it is about the authority that states choose to vest in lieutenant governors, superintendents of public instruction, and cities. Admittedly, the Constitution is not wholly silent on these issues. For instance, we think that no state could grant its governor (or its attorney general) the power to pardon federal offenses because the Constitution is best read as granting such power exclusively to the President.23 Likewise, no state may grant its legislature the power to make laws for the District of Columbia because federal legislative power over the District is exclusive.24 But while the Constitution bars states (and state officers) from exercising certain powers reserved to the federal government, it does not purport to specify the affirmative authority attached to state offices.25 Given this absence of such affirmative grants of power, and given that the Constitution does not more generally empower states or their officers, we think it certain that the Constitution does not grant attorneys general a discretionary power to concede the invalidity of state law.
Even though federal statutes reference attorneys general, they are indifferent to whether these state officials have authority to concede the invalidity of state law. Federal law mentions attorneys general in different contexts: authorizing them to bring suit to vindicate federal law; ensuring that federal statutes are not construed to authorize suits against them; and requiring federal courts to notify them of federal suits challenging the constitutionality of state law.26 Yet no federal statute purports to empower attorneys general to concede that federal law trumps a state law. The absence of any such statute makes sense, for Congress can rely upon federal or private attorneys to argue that federal law supersedes state law,27 leaving the merits to the courts.
If the Constitution and federal statutes do not grant attorneys general a discretionary power to concede the invalidity of state law, then do these sources of law nonetheless oblige them to admit such invalidity? Although the analysis is more complicated and although the claims of supposed federal obligation have a surface plausibility, the answer is “no.”
Two portions of the Constitution might cause some to imagine that the federal Constitution sometimes requires attorneys general to act as neutral arbiters of the interplay of state and federal law and concede the invalidity of the former. First, the Supremacy Clause might require state executives sometimes to concede the invalidity of state law because failure to do so would be inconsistent with the supremacy of federal law. Second, the oath to “support” the Constitution might compel state executives to decline to defend the validity of state laws that are of dubious validity. We don’t believe either argument has merit.
The Supremacy Clause does not oblige attorneys general to decline to defend state law whenever they conclude that state law is more-likely-than-not inconsistent with federal law. The bare fact that federal law is supreme over state law tells us nothing about what federal and state personnel must do as a means of ensuring that supremacy. With respect to attorneys general, federal supremacy tells us nothing about whether these state officials must refuse to defend the validity of state law whenever they believe that federal law likely renders the state law invalid.
Consider a parallel case. Everyone infers that the Constitution is supreme over contrary federal statutes and treaties; indeed, this principle goes back to the nation’s founding.28 Yet we know of no one who supposes that the implicit supremacy of the Constitution over contrary federal statutes, by itself, requires all members of the federal bureaucracy to concede (or declare) that federal statutes are unconstitutional whenever such personnel believe that federal statutes are more likely than not to be unconstitutional.29 Again, the supremacy of certain laws within a regime does not establish, by itself, the duties that bureaucrats have, much less that all of them have the authority to ignore a subset of laws on the grounds that they believe them to be inconsistent with higher law. We don’t think a GS-1, step one (the lowest rung for federal employees) has an obligation, stemming from the Supremacy Clause, to disobey federal statutes she believes to be unconstitutional.30
Of course, the Supremacy Clause does single out certain officials—namely, state judges.31 Like others, we think “Judges in every State” is a reference to state judges (rather than federal judges who might hold court in states).32 Binding state judges to supreme law means that in deciding cases, they should ignore state constitutions or laws that are contrary to supreme law.33 But that particular duty conspicuously does not extend to all state personnel. The text does not conscript state executives (including attorneys general) to judge independently whether supreme law trumps contrary state law and then act on the supreme law in the course of their duties. We believe one can draw a negative inference using the expressio unius maxim34: the imposition of a duty on a particular set of state officers (state judges) suggests that other state officers are not so burdened, at least not by the Constitution.
Perhaps the more plausible source of a federal constitutional duty to concede the invalidity of state laws is the oath of “support,” something that the Constitution requires of all state officers.35 In its first act, Congress carried into execution this obligation, commanding each state officer to “solemnly swear that [she] will support the Constitution of the United States.”36 Some might imagine that if an attorney general defends the federal constitutionality of a state law she subjectively views as unconstitutional, she contravenes her obligation to “support” the federal Constitution.37 After all, by defending state law that she believes is unconstitutional, doesn’t she undercut (rather than support) the Constitution?
We believe that this reading crams too much into the supportive oath.38 This oath does not demand that attorneys general decline to defend state law (or concede its invalidity) whenever they personally conclude that a state law is unconstitutional. More generally, the supportive oath never requires attorneys to shed their ordinary role of advancing the interests of their states (whether that refers to state officials or to the people) and instead only act on the “best” reading of the law.
The folly of reading a duty to concede into the supportive oath comes into focus when we consider its collateral consequences. First, if the oath requires attorneys general to confess that the federal Constitution supersedes state law, the same confessionary onus applies equally to federal statutes and treaties. After all, the Constitution makes federal statutes and treaties supreme over contrary state law.39 If supporting the Constitution requires candid confessions that it trumps state law whenever an impartial and professional legal judgment leads to that conclusion, then it likewise compels confessions that federal statutes and treaties trump state law. And yet we rather doubt that any attorney general regularly adopts the stance of being a purely disinterested arbiter of the interplay between federal and state law. More generally, we doubt that any state attorney, at whatever level in state bureaucracies, acts as if she must neutrally referee the supposed conflicts of state and federal law. For good reason, no one, as far as we can tell, believes the supportive oath has such far-reaching implications.
Second, because the Constitution trumps inconsistent federal statutes, the broad reading of the supportive oath would require all federal executives, including U.S. attorneys, the Attorney General and the Solicitor General, to concede that the Constitution trumps a federal statute or treaty whenever they have personally concluded that the latter was more-likely-than-not inconsistent with the Constitution. Though we have vigorously denied that the federal executive has a duty to defend, we never cited the Constitution’s supportive oath as a reason why the federal executive lacks such a duty.40 More significantly, because the conventional wisdom imagines that the federal executive has a duty to defend the constitutionality of federal statutes (that is, to advance any plausible or reasonable arguments in their defense), advocates of this conventional view must imagine that the supportive oath does not require all federal attorneys to act on their professional judgment that a federal statute is likely unconstitutional. In other words, if one supposes that the federal executive has a duty to defend federal statutes, then one must necessarily conclude that the supportive oath does not obligate the executive to concede the invalidity of a federal statute whenever the executive concludes that the statute is likely constitutional.
Third, governmental attorneys would not be the only ones forced to confess. Thousands of litigators would be duty-bound to yield arguments because many state bars require their members to “support” the Constitution.41 The Supreme Court (and many federal courts) requires bar members to take an oath of support.42 Yet no one imagines that such lawyers are barred from advancing a viable argument in favor of the validity of state law merely because that lawyer personally concludes that federal law more likely than not trumps the state law in question. Relatedly, no one supposes that such lawyers are barred from advancing a viable argument in favor of the constitutionality of a federal statute merely because the lawyer personally concludes that the federal statute is unconstitutional. Private lawyers routinely and properly oppose the preemption of state law even though they may privately suppose that federal law actually supersedes the state law. Such lawyers also routinely argue in favor of the validity of a federal statute even when they privately believe it is unconstitutional.
To our knowledge, no one has ever argued that all attorneys who have taken a supportive oath must be so candid as to confess their private view that some law is more-likely-than-not invalid. In part this may reflect the fact that the claim would require sweeping and breathtaking changes in practice. But it also likely reflects the commonsense view that an oath of support simply does not regulate the arguments that lawyers make on behalf of their clients in court.
To be clear, we don’t cite current understandings and practices as proof of our claim that the oath does not regulate the arguments that attorneys make in court. Yet if no one has read the supportive oath as requiring confessions of supersession of the sort described above, and no one who has taken the supportive oath believes that they always must act as disinterested arbiters of supersession, surely those facts strongly suggest that the supportive oath likely does not require concessions and disinterestedness on the part of state attorneys.
Summing up, we do not believe the federal oath of support commandeers all oath takers, public and private, requiring each to engage in constitutional and statutory interpretation, disinterestedly analyze questions of supersession, and then act consistent with the results. With astonishing frequency, state attorneys would be forced to confess the preemption of state law, usually citing a federal statute as the cause. Somewhat less often (but far, far more often than now), federal attorneys would have to acknowledge the unconstitutionality of federal statutes and treaties. Finally, private attorneys would have to concede that federal law preempted their client’s plausible state law claims and defenses, including claims and defenses that might have convinced the court to rule in their client’s favor. And all these concessions and confessions would arise from a shadowy implication of the oath to “support” the Constitution.
In our view, the supportive oath does not even bar oath takers from making frivolous legal arguments. Again, while one might conclude that advancing insubstantial arguments to support the validity of some state or federal law would undermine (and not “support”) the Constitution, a legal system may well rest on the belief that lawyers should advance whatever arguments (frivolous or otherwise) they believe are in the best interests of their clients, leaving the courts to sort through them and discern the proper outcome. This system would esteem the adversarial system and evince faith in the courts to hear arguments from all sides and reach the best result. Our Constitution permits such a system because it never sets a “plausibility threshold” for legal arguments, even for those who take an oath to support it. The familiar (and, we think, useful) bar on making frivolous arguments before courts arises from subconstitutional law43 and not from the oath to support the Constitution.
The duty to support the federal Constitution is meaningful without being transmogrified to encompass a duty to concede or a duty to decline to defend. Rather than requiring concessions as a gesture of “support,” the oath requires loyalty to the Constitution and the government it establishes. Oath takers must be faithful to the Constitution and ensure that they do not transgress it. Legislators should oppose bills that violate the Constitution; governors wielding a veto pen should thwart unconstitutional bills rather than sign them into law; and the police should respect the constitutional rights of those they investigate.
All told, nothing in the Constitution, either explicitly or implicitly, obliges all governmental attorneys (federal and state) to concede the invalidity of some law (or decline to defend its validity) merely because those attorneys personally conclude that the law is likely superseded by some higher species of law. The Constitution generally does not constrain the arguments that governmental attorneys make in court.
As a matter of constitutional structure, the absence of a federal duty for state attorneys general to concede the invalidity of state law makes sense. Our Constitution’s federalism, resting on the notion that states may check the aggrandizing impulses of the federal government,44 presupposes that states, through their officers, might contest the constitutionality of federal statutes and treaties. Foisting upon state officials a duty to concede the invalidity of state law or a duty to refuse to defend state law would go a long way towards eviscerating this check. It would convert every state attorney into a defender of federal law, forcing them to admit that state statutes and constitutions are unconstitutional. Moreover, such a duty also would require state attorneys to concede that federal statutes and treaties trump both forms of state law. The states, and their officers, were meant to be safeguards of a limited federal Constitution, not the front-line champions of federal power via candid confessions of federal supersession.
Federal statutes are similarly indifferent as to whether attorneys general have a duty to concede the invalidity of state law. Just as there is no federal statute empowering attorneys general to concede the invalidity of state law, there is none obliging state officers to use their state law authority to make such concessions. Again, Congress need not rely upon state concessions of federal supersession. When states wish for their attorneys general to vigorously defend the validity of state law, Congress can rely upon the courts to evaluate the claimed supersession.
In sum, we believe that neither the federal Constitution nor federal statutes say anything about the powers and duties of state attorneys general vis-à-vis the defense of state law. That federal law is supreme and that state attorneys general take an oath to support the Constitution does not establish that these officers must concede the invalidity of state law whenever their best legal judgment points to that conclusion. Supremacy and support do not imply a duty of candor and damaging concessions on the part of attorneys, including state attorneys general.
As noted earlier, the federal Constitution generally leaves states to determine their own internal governance. Each state must have an executive authority, a legislature, and judges, because the Constitution commandeers each in limited ways.45 But beyond this and a minimal republican requirement,46 the Constitution is silent. Therefore, whether a state attorney general has a duty to defend, a duty to decline to defend, a duty to concede, a duty to attack, or exercises discretion as to when to defend, stay silent, concede, or attack, is a function of state law. Subject to a limitation discussed below (and a few others that are hardly controversial),47 states may grant whatever powers and impose whatever obligations on an attorney general that they wish, assuming they choose to have one in the first place.
Begin with the simplest situation: whether an attorney general should defend state laws in the face of a state constitutional challenge. A state has carte blanche here because it seems hard to imagine why federal law would say much of anything in this area where no species of federal law is implicated. Each state may determine for itself whether (and how) its attorney general defends a statute in the face of state constitutional challenge. Directions may come from the constitution, statutes, popular initiatives, bar rules, or common law of the state. For instance, Pennsylvania statutes provide that “[i]t shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes,”48 while the Colorado Supreme Court has read state ethics rules and the attorney general’s oath to require the latter to file suit whenever she “has grave doubts about the constitutionality” of some governmental act.49
Differing senses of optimal policy might motivate the adoption of different approaches. Some states may surmise that their constitutions will function best when their executives cannot second-guess the constitutionality of statutes. These states may suppose that their governors always should enforce, and their attorneys general always should defend, statutes passed by the people or their legislators. Such states may espouse the benefits of specialization and conclude that only lawmakers and judges should evaluate the state constitutionality of statutes. These states may imagine that state attorneys should be analogized to private attorneys and zealously advocate on behalf of their clients’ interests, conceived of as the people, the legislature, or the bureaucracy. Other states may suppose that their constitutional system will be optimized when their attorneys general refuse to defend whenever they conclude that a state statute is more-likely-than-not contrary to the state constitution. Some of these states also may decide that governors should not execute state statutes that are inconsistent with the state constitution. That is to say, some states may impose a duty to disregard state laws whenever high-ranking executive officers believe that the statutes contravene the state constitution. States might adopt this approach if they imagine that the optimal defense of the state constitution requires checks at multiple stages, including passage in the chambers, presentment to a governor, enforcement, and litigation. A third cluster of states may determine that the need to vindicate the state constitution is so paramount that when an attorney general doubts the validity of a state law, she should turn to the courts to have those doubts addressed. Rather than being passive (waiting to respond to a lawsuit), the power to attack makes attorneys general proactive, by giving them the means of securing a prompt judicial resolution on the validity of dubious state statutes.
Our claim is not that every state can be neatly pigeonholed into one of these categories, or that every state precisely defines the powers and obligations of its attorney general. As we discuss in Part II, many states in fact are quite hard to classify.50 Moreover, some states may adopt more than one approach, allowing attorneys general to concede the invalidity of state law in the face of a challenge while simultaneously empowering them to seek a judicial resolution in the first instance. And states may choose to hybridize these approaches, requiring defense of statutes that raise individual rights questions but permitting concessions in the face of separation of powers claims. Or a state might authorize its attorney general to contest the state constitutionality of legislation only when her powers are at stake. The permutations seem infinite.
Whatever permutation a state chooses, it will bear on the way in which the state regulates the conduct of its attorney general in the face of an alleged conflict with federal law. Although we previously argued that federal law does not establish any particular rule when it comes to the duty to defend, federal law may nonetheless influence how states regulate their attorneys general. More precisely, the Supremacy Clause may implicitly bar discrimination against species of federal law. In all cases, state officers (executive and judicial) should treat federal law no less favorably than they treat analogous state law. In 1947, the Supreme Court embraced this principle in Testa v. Katt in the context of a state court.51 The Court refused to allow the court to discriminate against federal claims, noting that federal law, because it is the “law of the land,” is state law.52
This Testa-derived principle helps ensure that a state does not regard federal law as that of an alien sovereign or as something marked for disadvantaged treatment. If a state court has jurisdiction over state constitutional issues, then it should adjudicate federal constitutional questions. Similarly, if prior to enforcing a state statute, a state executive must decide whether that statute is contrary to the state constitution, then the state executive must decide whether the statute is contrary to the federal Constitution. Otherwise the state constitution would be receiving preferential treatment vis-à-vis its federal counterpart. But if a state officer is not obligated to consider state constitutional issues as he executes his duties, the federal Constitution does not require him to consider the corresponding federal constitutional questions. As we noted earlier, some state officers may be walled off from state constitutional issues, leaving them to higher-level officials. If so, the state also may bar such officers from considering federal constitutional issues.
This principle suggests that if an attorney general may (or must) concede the unconstitutionality of a state statute in the face of a state constitutional claim, then she must have the same authority or duty vis-à-vis a claim about the federal Constitution. Likewise if an attorney general may (or must) file suit to contest the state constitutionality of a state statute, she may (or must) file suit to contest the federal constitutionality of a state statute.53 Put simply, attorneys general cannot discriminate against federal law because doing so would fail to treat federal law as a species of state law.
Understood as a bar on discriminating against federal law, the principle does not forbid states from favoring federal law. For example, a state would not violate any federal constitutional principle if it granted its attorney general authority to concede federal supersession of state law even if its attorney general lacked authority to concede that the state constitution invalidated a state statute.
Our research suggests that no state discriminates against (or in favor of) federal law. For instance, we know of no state that permits its attorney general to concede the state unconstitutionality of state statutes but requires her to vigorously defend the federal constitutionality of state law.54 Nor do we know of any state that obliges its attorney general to challenge the state constitutionality of state law but that bars the attorney general from challenging the federal constitutionality of state law.55
We have said that the answer to the question whether a state attorney general may (or must) defend state law or concede its invalidity rests solely on state law, as constrained by the principle barring discrimination against federal law. Before refusing to defend a state law or challenging the validity of state law, a state attorney general must invoke powers arising from state law. In making claims about state law, we believe that an attorney general must do more than point to the nature of her office or to the fact that the state constitution created it.
Hence, we disagree with Attorney General Eric Holder. In an interview, Holder claimed that state attorneys general could gauge the constitutionality of a state law and refuse to defend because that “is something that’s appropriate for an attorney general to do.”56 Yet the office of state attorney general need not necessarily enjoy authority to concede the unconstitutionality of statutes. The federal office has changed over time and the state office has rather different contours across the fifty states. The fact that the office of attorney general invariably comes with authority to serve as an attorney—to advise and to litigate—tells us little about who an attorney general’s principals are (whom she represents) or whether she can decline to defend the constitutionality of state law.57
We also may diverge from Norman Williams. Williams claims that “constitutional officers”—officers mentioned in the state constitution—must be able to refuse to enforce state law that they believe is inconsistent with the Constitution, at least when the matter concerns these officers’ constitutionally granted powers.58 While Williams’s article focuses on governors and their particular features, his argument extends to attorneys general who have constitutionally granted powers.59 Because some constitutions mention dozens of officers, Williams would read them as authorizing these “constitutional officers” to ignore statutes that contravene their constitutional powers. For instance, on Williams’s account the Louisiana Commissioner of Agriculture60 and State Police Commissioners61 could ignore statutes that impinge upon their constitutional powers.
We fail to see why every constitutional officer “necessarily”62 must enjoy authority to refuse to enforce legislation that the officer believes impinges upon her constitutional powers. The explicit grant of certain constitutional powers to an executive does not logically or necessarily entail implicit authority to ignore statutes that circumscribe such powers. A constitution may dictate that only certain officers can engage in executive review, or that none can, without containing any internal contradiction. The bare fact that a constitution grants power to an officer does not tell us which measures the officer may take to safeguard her constitutional authority.63
We also disagree with those who insist that attorneys general necessarily have a duty to defend their state statutes and constitutions. For example, in response to Holder, J.B. Van Hollen, Attorney General of Wisconsin, asserted that state attorneys general must defend state constitutional amendments.64 He further argued that state attorneys general may concede the unconstitutionality of state statutes only in “rare cases.”65 Even if Van Hollen has accurately described how Wisconsin constrains its attorney general, we do not believe that he has accurately captured the complexities of the laws across the other forty-nine states.66 Indeed, like Holder, Van Hollen has not offered any reason why anyone should suppose that every state necessarily has an office of attorney general that exactly matches his description of the office’s metes and bounds.
We hope to have demonstrated in this Part that when evaluating an attorney general’s decision to concede that state law is preempted or unconstitutional, or her decision to challenge a state law proactively, the crucial question is whether state law authorizes the state officer’s actions. State officers, including attorneys general, have powers, duties, and discretion grounded on the best reading of the law rather than self-serving readings. Holder wishes to see the demise of anti-same-sex marriage laws and hopes that others emulate his non-defense of DOMA, thereby validating his decision not to defend DOMA and furthering his policy aims. Van Hollen opposes same-sex marriage67 and argues that other attorneys general have an obligation to defend same-sex marriage bans, thereby reinforcing his policy stance on the issue. We think that both are wrong. They suppose that there is a one-size-fits all answer to the question whether attorneys general may concede the invalidity of state statutes and constitutions. While attorneys general all share the same title, they can and do have different powers and duties.
We find it curious that state officials frequently act as if state law issues should be evaluated without reference to state law.68 Although each attorney general serves a particular state and derives virtually all her authority from state law, attorneys general have shown a lamentable indifference to state laws, rules, and norms when discussing the duty to defend. As noted, some Democratic attorneys general pointed to Attorney General Holder’s refusal to defend DOMA when justifying their own refusal to defend state bans on same-sex marriage.69 Democratic attorneys general have also cited their oaths to the federal constitution or their desire to do what is “right” and be on the right side of “history.”70 For its part, the Republican Attorney General Association slammed Holder for asserting that attorneys general could refuse to defend state laws, calling Holder’s approach “as inappropriate as it is unprecedented.”71 These Republicans seem to suppose that there is an absolute duty to defend unless there is an authoritative and adverse U.S. Supreme Court precedent on point.72 Noticeably absent are meaningful references to state law, which might mandate defense of state law or might grant power to decline to defend.73 Also missing is any recognition of the prospect that the powers and duties of attorneys general might vary across the states, such that the answer for Virginia’s attorney general might be rather different than the answer for Maine’s or Alaska’s.
These omissions and blind spots are regrettable. Though there are some commonalities, the office of the attorney general is not the same across the fifty states. As we will discuss, while most attorneys general are elected, some are appointed by the legislature or the state supreme court. Though most attorneys general are in the executive branch, some are in the judicial. Several write opinions at the behest of either the legislative or judicial branches; others don’t. Some are the exclusive representatives of their states in court; in some states, other officers also may litigate for the state, including in defense of state laws. For our purposes, some attorneys general have authority not to defend state law after concluding that some higher law supersedes a species of state law. Other attorneys general must defend the validity of state law. Finally, some (but not all) have common law authority to represent the “public interest” and challenge the constitutionality of state law.
This Part begins by highlighting the origins and functions of the office of state attorney general. We then consider state law, both constitutional and statutory, and note that very few states directly address whether their attorneys general must (or must not) defend state law, though most states’ constitutions and laws nonetheless determine the contours of these duties. The absence of explicit reference to the duty to defend (or its alternatives) enables attorneys general to adopt self-serving stances and make superficially plausible claims about their duties.74 By surveying the variations across the states, this section underscores the need to look to the peculiar constitutions, laws, and traditions of each state. We end by examining practice. Before the controversy over same-sex marriage, examples of state nondefense were few and far between (and many stemmed from the U.S. Supreme Court’s invalidation of another’s states nearly identical law). Since the marriage controversy, the number of nondefenses has ballooned, suggesting that the controversy is a watershed moment. For reasons discussed both in this Part and the next, the stances of attorneys general on the duty to defend are almost entirely a product of politics rather than law.
Unlike the U.S. Attorney General, most state attorneys general are not part of a unified executive; typically they are neither subordinate to, nor serve at the pleasure of, the governor.75 Only some states mandate that the attorney general work in conjunction with the governor.76 Six states formally place the attorney general in the governor’s cabinet (Alaska, Arizona, Florida, Hawaii, Michigan, and New Jersey) but in only three of those does the governor appoint the attorney general (Alaska, Hawaii, and New Jersey).77 In most states, the attorney general is independent of the governor—either because he is selected by the legislature (Maine), the state Supreme Court (Tennessee), or—as is the case in forty-three states—elected.78
Under the common law, English attorneys general both served the wishes of the Crown and occupied a position of power and discretion.79 When the office was transplanted to the American colonies, the diffusion of power throughout many agencies and heads of government necessitated a broader grant of discretion. According to one scholar, the “incidents of the office were so numerous and varied as to discourage the framers of the state constitutions and legislatures from setting them out in complete detail, thus permitting [attorneys general] to look to common law to fill in the gaps.”80 Accordingly, “the common law is a vital source of power for attorneys general who seek to protect [the] public interest in developing areas of the law.”81
The common law power to represent the public authorizes many attorneys general to file suits on behalf of the people. Attorneys general have launched lawsuits against tobacco companies, America Online, General Motors, Mazda, Sears Roebuck, and many others, and have thereby imposed “state-based regulation with nationwide impact” in consumer protection, environmental regulation, and securities regulation.82 Attorneys general have also invoked their common law authority “to represent the public interest” when filing lawsuits challenging the validity of state law.83 Because of constraints on federal court jurisdiction, these common law challenges are filed in state court, often against the secretary of state.84 As one might expect, the scope of this common law power varies from state to state.85
State positive law also empowers attorneys general to represent the state, its agencies, and its officials. In some states, attorneys general have a monopoly over state litigation.86 In others, litigation authority is dispersed (for example, an agency might employ its own attorney, an elected district attorney might control some litigation, and the governor might have concurrent authority to defend state conduct).87 Moreover, as discussed later, states have different rules regarding who—if anyone—can stand in for the attorney general when the latter perceives a conflict between her responsibilities to the people (because, for example, she thinks state law is unconstitutional) and her duties to state entities.88
Attorneys general also must issue legal opinions and therefore regularly interpret state and federal law, including whether federal law supersedes state law. Unlike the U.S. attorney general (who issues opinions only to members of the executive branch),89 state attorneys general often supply legal opinions to the other branches. Most attorneys general write opinions for the legislative branch and individual legislators;90 some attorneys general also supply opinions to the judiciary.91 In one state (Kentucky), private citizens may request opinions.92
Attorneys general, through opinions on the constitutionality of state law, help to shape state enforcement. Within one year of the 1962 Supreme Court opinion forbidding the reading of prayers or the Bible, “the attorneys general of 17 states, or about 41 percent of the states whose practice was affected, wrote opinions explicating the issues involved.”93 In response, several states reconsidered whether they ought to enforce laws permitting the recitation of prayers or the Bible in public schools.94 A 1990 Utah Attorney General opinion that the state’s domestic violence law was “probably unconstitutional” led several Utah jurisdictions to refuse to enforce the statute.95 Sometimes attorneys general act on their own opinions. After Nebraska Attorney General John Bruning opined that a state campaign finance statute was unconstitutional, he brought suit and secured a judicial declaration to the same effect.96
Here we provide a snapshot of state law related to the duty to defend, a summary not meant to make definitive claims about all states. Rather our discussion is, in some measure, meant to complicate matters. The complications arise from the near universal absence of clear-cut state law on the duty to defend. State constitutions lack explicit reference to a duty to defend. State statutes are more of a mixed bag. Sometimes these statutes reference a duty to defend. In one state, the statute references a rather different obligation, a duty to contest the constitutionality of state law. A few state statutes explicitly mention that others may defend state law, thereby implying that the attorney general lacks a duty to defend.
Start with the state constitutions. Forty-three clearly do not provide anything about whether the attorney general has a duty to defend (or concede).97 Most of these declare that the attorney general’s powers come from state statutes98 or merely create the office without specifying its attributes.99 Some of these, such as Indiana’s, say nothing about an attorney general at all.100 Of the remaining seven constitutions, four specify that the attorney general is the “legal officer” of the state,101 and three declare that the attorney general—as the Texas Constitution puts it—“shall represent the State in all suits . . . in which the State may be a party.”102 These seven constitutions seem deeply ambiguous. While being the “legal officer” of a state suggests that the “state” is the client, this hardly implies that the attorney general always must defend the validity of state law. Similarly, saying that an attorney general “shall represent” the state in all suits might mean that the attorney general can, in that representation, refuse to appeal a lower court defeat or otherwise concede the invalidity of state law.103 Take the case of California. California’s Constitution speaks of the Attorney General’s obligation to represent the state and her “duty” to “see that the laws of the State” are “adequately enforced.”104 While one might suppose that this language means that the attorney general must defend state law, in litigation over exclusionary zoning (1966) and same-sex marriage (2008), California attorneys general have refused to defend state law.105
To be sure, many state constitutions require state officers to take an oath to “support” the state constitution.106 We doubt that such oaths address the duty to defend, especially because they are imposed on a broad swath of officers. For example, the Virginia Constitution requires “[a]ll officers elected or appointed under or pursuant to this Constitution” to take its oath of support.107 As we argued with respect to the federal oath of support,108 we think that supportive oaths are about loyalty to the government; they do not incorporate a duty to defend state laws (or a duty to concede their invalidity). The fact that state officers almost always take an oath to support both the federal and state constitutions further suggests that the oath is about loyalty and allegiance and does not specifically mandate defenses or concessions. After all, it would be odd to have one oath requiring support for both federal and state constitutions but have “support” mean different things with respect to the two constitutions.
Having said this, we do not deny the possibility that a state could craft an oath that requires the state attorney general to defend state law (or concede its invalidity). If an oath declared that an officer “shall defend state law,” that would seem more relevant, even if still ambiguous. Our narrow point is that the case for an alleged duty to defend (or not to defend) cannot rest on an oath that merely requires “support.” An attorney general who insists that she must defend state law (or concede its invalidity) on the basis of only her state oath of “support” has not established her case.
Unlike state constitutions, state statutes invariably speak to the power and responsibilities of the attorneys general.109 Most state statutes provide that the attorney general is to represent (or appear on behalf of) the state or has a duty to represent it. As noted with respect to similar constitutional provisions, such language is rather equivocal because it is hard to tease out implications about when attorneys general may (or must) defend (or concede the invalidity of) state law. A handful of states have more specific directives. Two states mandate that their attorneys general defend the constitutionality of state law (Pennsylvania and Mississippi).110 Tennessee clearly empowers its attorney general to refuse to defend laws she finds unconstitutional.111 Louisiana has a suggestive but ambiguous statute. It provides that the attorney general “at his discretion, shall represent . . . the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed.”112It is suggestive because one might conclude that the Louisiana Attorney General may choose, “at his discretion,” not to defend the constitutionality of state law. By statute, Nebraska compels its attorney general to challenge the constitutionality of state law whenever two preconditions are satisfied: first, she has previously opined that the law is unconstitutional, and second, a state officer refuses to enforce the law in reliance on that opinion.113 This express duty to attack is somewhat narrow because it only applies when the two preconditions are met.
Even when codified state law imposes an obligation to defend, the duty’s implications are rather uncertain and raise a host of questions. What sort of arguments must the attorney general make at trial or on appeal? Any argument, even if implausible? Only plausible arguments? Or only those arguments that actually persuade the attorney general, meaning that if there are none, she need not mount a defense even if others think there is a plausible argument? Relatedly, must she advance (plausible or persuasive) legal arguments that the state supreme court or the U.S. Supreme Court has previously rejected in another legal context? What if a supreme court has already declared a state law to be unconstitutional (or otherwise preempted)? Must the attorney general nonetheless make the same arguments again because she has a duty to defend and hope that the supreme court will change its view?
There is the separate issue of whether to appeal. In particular, must the attorney general with a duty to defend appeal unfavorable trial court judgments that strike down state law? If so, must she continue to appeal until the highest court rules?114 One might suppose that anything short of continual defense, however futile, violates the duty to defend. Yet one might also imagine that duties have implicit limits and that context matters. Though soldiers are duty-bound to defend their country, that obligation is not unyielding, for even soldiers may surrender to the enemy in certain circumstances.115 Similarly, one might suppose that the duty to defend applies only when a defense has a prospect of success in the courts.
Some states have statutes specifying that someone other than the attorney general may defend state law.116 Others anticipate that the attorney general will opt out of litigation for one reason or another117 or require the attorney general to notify the governor, affected agency, or state legislature that she will not defend the state’s position on appeal,118 provisions that imply that these others might take over the litigation. In situations where the attorney general has refused to defend, sometimes the affected agency or legislature is authorized by statute either to intervene or appoint counsel.119 In other instances, statutes authorize the governor to take over litigation.120
As noted earlier, common law may also grant authority and imposes duties. In 2003, citing their “common law duty to represent the public interest,” forty-three attorneys general claimed that attorneys general may file lawsuits challenging the constitutionality of state legislation on behalf “of the state and its citizens.”121 This claim came in a brief meant to support a suit by the Colorado Attorney General challenging the state constitutionality of a statute. The brief cited four state cases upholding the authority of certain attorneys general to file such suits.122 We agree that state law (either statutory or common law) authorizes some attorneys general to file suit challenging the state constitutionality of state statutes.123 But just because some may file suit does not mean that all may. One author asserts that some attorneys general lack common law authority to file constitutional challenges,124 and another argues that a “significant minority” of states have wholly abandoned the common law, thereby limiting their attorneys general to powers flowing from constitutions and statutes.125 Moreover, even among states that recognize a common law power to challenge the constitutionality of statutes, the standard varies for when an attorney general may file such suits.126
In other states, courts have read state law as imposing a duty to attack the constitutionality of some state statute. The Florida Supreme Court long ago spoke of its state attorney general having such a duty.127 The Colorado Supreme Court held that whenever the state attorney general “has grave doubts about the constitutionality” of some governmental act, “he must seek to resolve those doubts as soon as possible” by filing suit.128 Similarly, an Illinois appellate court has said that its attorney general has a “duty to challenge” statutes that she regards as “constitutionally infirm.”129
The juxtaposition of a duty to defend and a duty to attack may seem odd, even nonsensical. But there are ways of squaring the two apparently discordant duties. It may be that the duty to defend exists only when the case against the constitutionality of some law is less than overwhelming. And it may be that the duty to attack comes into play only when the case against the constitutionality of some law is overwhelming. This would suggest that attorneys general that confront a duty to defend and a duty to attack have no breathing room; they must honor one duty or the other. But one can imagine innumerable permutations: a duty to litigate on separation of powers matters coupled with a broad duty to defend otherwise; a duty to litigate when confronted with a clearly unconstitutional law and a duty to defend when faced with a law that is merely likely unconstitutional, with some discretionary authority in the space between clearly unconstitutional and likely unconstitutional; a duty to defend coupled with a discretionary power to litigate when a law is clearly unconstitutional. And so on.
These are not just matters of speculation. The Nebraska Attorney General, for example, seems to be under both obligations. As noted, the Nebraska legislature statutorily compelled the attorney general to challenge the constitutionality of state statutes in limited circumstances.130 Nonetheless, since then, Nebraska attorneys general have claimed that by law they have a duty to defend the constitutionality of state law.131
One-size-fits-all claims about the duty to defend vastly oversimplify. When Republican state attorneys general insist that attorneys general, as a group, must defend state law,132 they presume to know the law of fifty states and that these laws all point to the same conclusion. Likewise, when Holder says that all attorneys general may decline to defend,133 he paints with too broad a brush. In hoping to find one answer for fifty different states, both sides have substituted sweeping generalizations for the demanding, contextual, fine-grained legal analysis that is necessary.
Before 2008, state attorneys general routinely defended state law and nondefense of state law seemed non-politicized.134 A survey of attorney general opinions suggests that nondefense was of little interest to lawmakers, agencies, and private citizens seeking opinions by attorneys general.135 We could find only two opinions (Tennessee, Maine) that responded to a specific question about the duty;136 we could find only one opinion (Pennsylvania) containing substantial discussion of the duty.137 All other references to the duty were found in opinion letters where someone had requested an opinion about the constitutionality of state law and the attorney general sua spontenoted an obligation to defend. Most opinions suggested that the duty to defend was absolute, although some said that the obligation was inapplicable if the law “clearly and undoubtedly” was unconstitutional.138 We found two opinions (Connecticut, South Carolina) suggesting that non-defense could be justified by nothing less than a binding U.S. or state supreme court decision on the underlying issue.139
The practices of attorneys general likewise suggest that before 2008 the defense of state laws was remarkably routine. For instance, it seems that attorneys general rarely used their common law authority to challenge the constitutionality of state law; we identified only sixteen cases between 1930 and 2011.140 Refusals to defend seem less rare, especially more recently. In calculating refusals to defend, we relied principally on Westlaw searches in the state and federal case database. We also made numerous judgment calls, focusing on refusals to defend where the attorney general made a professional judgment that the state law was unconstitutional or that a court would invalidate the law.141 Based on these calculations, we identified three refusals before 1980142 and twelve from 1980 to 2007 (eight of which are from three states—Texas, New Jersey, Tennessee).143 Of these fifteen cases, there is no obvious pattern: some were refusals to defend at the outset; some were refusals to appeal an adverse judgment; some were federal claims, others state claims; some in federal courts, others in state courts; some involved legal issues on which the U.S. Supreme Court had ruled; some refusals were by elected, and others by appointed, attorneys general, including governor-appointed attorneys general who were refusing to defend laws vetoed by the Governor; twelve concerned high-profile issues (abortion, religion, voting, same-sex sodomy, gender discrimination); three involved low-salience subjects (tax notices, milk regulation, and debtor waiver).144
The infrequency of refusals to defend before 2008 is striking. Particularly infrequent were refusals by elected attorneys general to defend statutes on high-profile issues where the U.S. Supreme Court was silent (four total).145 Attorneys general routinely defended school segregation,146 bans on interracial marriage, and other laws ultimately invalidated by the Supreme Court.147 While most of these laws were politically popular within their states, attorneys general also defended unpopular statutes. For example, from 2006 to 2008 Connecticut Attorney General Richard Blumenthal defended the then-unpopular state ban on same-sex marriage, a ban that he later opposed as a Senate candidate.148
Blumenthal was something of a dying breed. After 2008, attorneys general proved increasingly willing to refuse to defend state laws. Unlike Blumenthal (who, adhering to tradition, defended state laws unless the law was clearly unconstitutional under Connecticut or U.S. Supreme Court precedent),149 many attorneys general, post-2008, have deviated from past practice by refusing to defend statutes unpopular with their political base.150 Despite state constitutional and statutory provisions that the laws be “adequately enforced”151 or that the attorney general “appear for”152 and “represent”153 the state, text that could be read to require a defense of state law, many attorneys general have declined to defend the validity of certain state laws. Even language that the attorney general “defend”154 the state has not constrained attorneys general from refusing to defend laws unpopular with their political constituents.155
In particular, same-sex marriage became a watershed issue in refusals to defend. Beginning with Jerry Brown’s December 2008 refusal to defend California’s ban on same-sex marriage, twelve attorneys general (as of November 1, 2014) have refused to defend their state bans.156 Moreover, by our count, around fifty-seven percent of state refusals to defend (twenty of thirty-five) have occurred since 2008, with same-sex marriage accounting for one-third of all refusals.157 Other post-2008 refusals also have involved high salience issues, including gay rights, immigration law, gun control, education, and property rights.158 Outside of the same-sex marriage context, most post-2008 refusals involve Republican attorneys general (six of eight) invoking state constitutional guarantees and requirements (five of eight).159
A desire to curry favor with the political base helps explain most decisions not to defend. Aside from three cases in which the U.S. or state supreme courts had issued seemingly definitive rulings about the validity of the state statute,160 the post-2008 laws left undefended were overwhelmingly unpopular with the attorney general’s political base (or the governor’s when the latter appointed the attorney general). Democrats refused to defend same-sex marriage bans; Republicans refused to defend restrictive gun laws and statutes protecting same-sex couples.161
Equally telling, most post-2008 states with refusal-to-defend controversies were states where neither Democrats nor Republicans dominated.162 Eleven of the seventeen cases (not involving clear-cut state or U.S. Supreme Court precedent) occurred in “purple states,” and in all twelve cases the attorney general’s litigation position aligned with the views of her political base—Republican in Virginia, Colorado, New Jersey, and Wisconsin; Democratic in Virginia, New Mexico, Nevada, Kentucky, Pennsylvania, and North Carolina.163 Five of the remaining six cases involved blue state attorneys general who did not defend state bans on same-sex marriage.164
Other examples suggest that politics influenced decisions. In states with Democratic attorneys general refusing to defend marriage laws and Republican governors (Pennsylvania, Nevada), the governor initially defended the law.165 In New Jersey (where the attorney general is appointed), Republican Governor Chris Christie curried favor with the national party by initially defending the state ban on same-sex marriage while refusing to defend gun control legislation.166
As we have shown, state law and practices regarding the duty to defend vary from state to state and from attorney general to attorney general, meaning that one cannot generalize about the powers and duties of the attorneys general. There is no neat answer to the question of whether attorneys general are legally obliged to defend state law. Sometimes state law addresses the duty to defend, either requiring as much or suggesting there is no duty. Moreover, some states impose a duty to litigate the constitutionality of state law. But most often, state law seems utterly silent.
In practice, attorneys general have long asserted in response to this silence that they have a strong duty to defend. But that view has greatly eroded in the past decade. Many attorneys general have declared that their duty to defend has various exceptions and caveats, sometimes making the claim in the face of same-sex marriage laws and sometimes in other contexts.
But competing conceptions of the state duty to defend are not really about the duty to defend; the fight is about same-sex marriage. Holder and others who favor same-sex marriage imagined that the federal Constitution imposed a duty not to defend upon state officers or at least authorized non-defense. Attorneys general who opposed same-sex marriage imagined there was a uniform, almost “national” obligation to defend, without regard to state law. Both sides were searching for an expedient legal answer that furthered their side in the culture wars. Both sides found one in the form of a nationwide rule when the reality is far more complicated.
Elected attorneys general seek political advantage.167 They invariably curry favor with their political base (party, interest groups, voters) as they seek reelection or a new office.168 Correspondingly, elected attorneys general pay more attention to the needs of their political base than to the institutional or political interests of other parts of the executive branch, including the governor.169 By pursuing litigation strategies (challenges, defenses, appeals, arguments, targets) designed to win favor with their constituents, attorneys general further their careers.170 Recent refusals to defend reflect the same dynamic: by refusing to defend laws that their bases oppose, attorneys general have sought to cement their standing with their bases.
This Part focuses on the political ambitions of attorneys general and contrasts their incentives to those of the court-centric attorneys in the DOJ. We also try to explain why the duty-to-defend controversy erupted over same-sex marriage. Party polarization has now created incentives for Republican and Democratic attorneys general to cater to their base on the issues that divide their parties.
Attorneys general frequently seek higher office, so much so that the “AG” label has been described as shorthand for “Aspiring Governor.”171 Studies have shown that around 21.5% of attorneys general run for Governor and around 10% run for Congress (7.7% for Senate; 1.9% for House).172 In four-year electoral cycles, on average more than eleven attorneys general run for governor; in ten-year electoral cycles, on average nine attorneys general run for Senate.173 In Alabama, all but one Attorney General ran for Governor from 1955-1997 (and the one who did not run had previously lost his reelection bid).174 The long list of attorneys general that have sought higher office leaves no doubt that the position is a political stepping stone. This is especially true of elected attorneys general; as compared to appointees, they are around twice as likely to seek higher office:175 37% of elected attorneys general (as compared to 19% of appointed) seek higher office; 26% (as compared to 13.4%) run for governor, 9.3% (as compared to 4.7%) ran for Senate.176
The office of attorney general—something of “a strange hybrid” in American government177—nurtures the political ambitions of its occupants because it facilitates policy entrepreneurship. While obliged to write opinions and represent government agencies, elected attorneys general can pursue their own agendas even as they fulfill these duties. Elected attorneys general sometimes use their opinions to assert and advance their legal policy preferences.178 Furthermore, attorneys general typically have wide-ranging policymaking discretion stemming from their ability to sue on behalf of the state. They may sue state instrumentalities179 and, by bringing lawsuits against private parties, increasingly function as an omnicompetent regulatory agency.180
Consistent with political science claims that politicians are influenced by the “‘structure of opportunities’” afforded by their office and more likely to “run for a higher office when their current office affords them many opportunities to advance in politics,” ambitious attorneys general have proven adept at expanding their base by launching high-visibility legal challenges.181 Most notably, state attorneys general capitalized on gaps in federal regulation by filing suits related to consumer protection, antitrust, and other matters.182 They likewise have played to their bases by challenging federal legislation (including over two dozen challenges to the Affordable Care Act)183 and by issuing opinions defending state practices said to violate federal rules.184 They increasingly file certiorari petitions and amicus briefs in the Supreme Court, thereby attempting to make names for themselves.185
The relationship of attorneys general to their staff also facilitates their entrepreneurial tendencies. Attorneys general are often personally involved in individual cases as “they are closer, geographically and personally, to those actually handling and supervising trials and appeals.”186 This proximity better enables attorneys general to advance their electoral and policy interests in litigation.
With the rise of politically salient regulatory lawsuits against private interests and increased participation in U.S. Supreme Court cases, most attorneys general have appointed solicitors that help advance their legal policy agenda.187 These solicitors are part of an attorney general’s senior staff and sometimes handle a range of delicate non-appellate work—including the writing of formal legal opinions and the handling of important trials.188 While state solicitors are often court-centric in their orientation (many are former U.S. Supreme Court clerks who eventually will pursue court-centered careers in private practice, the bench, and the academy),189 they also must be sensitive to “the immediate political ramifications of many appeals”190 and the electoral fallout of their exertions, appellate or otherwise, because they labor for a political creature (the attorney general) keenly interested in those consequences.191
The recent high-profile refusals to defend (along with the noisy choices to defend) are yet another example of attorneys general exploiting the advantages of their offices to advance their electoral fortunes. Just as suits against cigarette companies advanced the careers of ambitious attorneys general, the same is true of the choice whether to defend bans on same-sex marriage and regulation of guns.
As compared to the U.S. Attorney General, state attorneys general seem more apt to decide not to defend.192 To begin with, the U.S. Attorney General rarely seeks higher office and is in charge of an agency whose authority is linked to federal courts deciding cases litigated by DOJ lawyers.193 Moreover, at the federal level, the duty to defend helps stave off congressional and agency attempts to limit DOJ control of government litigation.194 In contrast, state attorneys general frequently seek reelection or higher office and, as such, are less court-centric and far more likely to pursue policies that enhance their status and reputation among their political allies and voters more generally. As noted earlier, state attorneys general are independent power brokers who frequently engage in entrepreneurial lawsuits and litigation choices.195
Three factors limit fallout from state failures to defend, thereby making the choice more acceptable to state attorneys general. First, sometimes other state attorneys have principal litigation authority.196 For instance, some agencies and localities control their own litigation.197 In most states, local prosecutors handle criminal cases.198 Hence some attorneys general may be forced to play a circumscribed role in some litigation—sometimes they may be able to take over a case, and other times they may be limited to intervening or filing an amicus brief.199 The Kansas Attorney General initially did not participate in Brown v. Board of Education and the Texas Attorney General never participated in Lawrence v Texas.200 Where someone else has sole or primary litigation authority, a failure to defend on the part of the attorney general may seem more palatable precisely because she does not control the litigation in the first instance. Second, and equally significant, an attorney general’s refusal to defend does not necessarily mean that a particular law will go wholly undefended. As discussed in Part II, sometimes the governor, affected agency, or state legislature may defend state law.201 In states where someone else can mount a defense, the institutional costs of attorney general non-defense shrinks or disappears, meaning that few may be troubled by an attorney general’s decision to gratify his constitutional or political preferences. Third, attorneys general may choose not to defend with little risk of upsetting expectations within a state’s legal bureaucracy. Unlike the court-centered attorneys in the federal DOJ,202 attorneys who work for the state attorney general are more apt to be quite attentive to her concerns.203 Moreover, these attorneys are seeking “to learn specific types of law in order to gain benefits for subsequent private practice.”204 They are not part of a “jurocracy” that delegates substantial decision-making power to careerists.205
In sum, because attorneys general have ample incentive to use their office for political advancement, and because the consequences of their nondefense likely are minimal, attorneys general are free to take litigation positions that reflect their legal policy preferences and resonate with their political base.206
If we are correct about the latitude enjoyed by attorneys general, one may wonder why nondefense was not more common before 2008. Recall that before the recent spate of attorneys general refusing to defend laws unpopular with their base, nondefense was rare and seemingly never pursued for political gain.207 For the most part, attorneys general advanced their political interests by bringing suits calculated to their advantage and by hiring effective solicitors general.208 As discussed below, growing party polarization helps explain the recent dust-up between Republican and Democrat attorneys general over the duty to defend and the corresponding rise in opportunistic nondefense. Polarization also explains why attorneys general will increasingly turn to nondefense as another mechanism to advance their legal policy agenda.
Sharp differences between Republican and Democratic views about the propriety of same-sex marriage bans explain why Republican attorneys general claim that same-sex marriage bans must be defended and why many Democratic attorneys general argue that the duty to defend does not apply to same-sex marriage bans.209 After all, Republican attorneys general really don’t all believe that all state laws must be defended; recall that some Republican attorneys general have refused to defend state domestic partnership registry laws and gun control measures.210 Relatedly, we suspect that if a large number of Republican attorneys general stopped defending affirmative action plans or campaign finance laws, some Democratic attorneys general might vigorously criticize the nondefenses. Because Democratic and Republican politicians often seek to distance themselves from the opposite party by embracing polarizing policies,211 we expect that Republican and Democratic attorneys general will continue to refuse to defend laws that frustrate their party’s diverging agendas.
For earlier attorneys general, seeking political gain by appealing to partisans in their party was often fraught with difficulty. Before party polarization created an ideological divide, Democrats and Republicans were strewn across the spectrum.212 In that era, issues like abortion, same-sex marriage, and gun rights did not serve as wedges dividing the parties.213 Moreover, attorneys general, legislators, and governors were less likely to engage in partisan battles over legislation. In other words, it was less likely that an attorney general from one political party would disagree—as a matter of partisan loyalty—with the views of the governor or legislators of the other party.
Today, Democrats and Republicans are more ideologically distant than ever before, especially the partisans who donate and vote in primaries.214 Now, when attorneys general are from a different party than the dominant legislative party or the governor, there is greater risk of conflict. Attorneys general are much more likely to espouse views that resonate with their coherent ideological base and are much more likely to seek political advantage by refusing to defend laws unpopular with that base.215
In purple states, the risk of conflict within the political leadership is especially acute. A majority of voters in these states have not settled on one side in today’s partisan wars, and hence their elected statewide representatives often come from different parties. Even when leading elected officials belong to the same party, it may be that the current attorney general is of a different party than the former attorney general or former legislature. On same-sex marriage, for example, purple state attorneys general have clashed with governors,216 legislatures,217 and former attorneys general (whose policies they have reversed).218
In deep red and blue states, the risks of controversy are mitigated by the fact that one party dominates the political branch. Responding to the same electoral groups, this leadership will either uniformly support existing state laws or work in concert to repeal or disavow them.219 On same-sex marriage, blue states either voluntarily repealed prohibitions on same-sex marriage or acquiesced to court orders striking down same-sex marriage bans.220 Because red state voters generally back these bans, their elected politicians tend to support them as well. Not surprisingly, red state attorneys general have vigorously defended these bans in court and go out of their way to condemn blue state attorneys general who refuse to defend these bans.221
Going forward, we believe that the duty-to-defend issue will figure prominently in elections for attorney general because the power to choose not to defend may seem an attribute of the office and can be used to satisfy a political base that abhors certain aspects of standing law. This will be especially true for purple states, where party polarization causes elected officials, including attorneys general, to focus their energies on the issues that divide the parties. In Virginia (2013), Georgia (2014), and Wisconsin (2014), for example, elections prominently featured the duty-to-defend issue.222
None of this is surprising. In highlighting the way in which political actors in red and blue states are likely to act in concert to pursue a shared agenda, we are not suggesting that state attorneys general will disavow clear responsibilities under state law. An attorney general faced with an unambiguous and codified duty to defend likely will defend unpopular state law provisions until those provisions are repealed. Still, attorneys general are ambitious. Where there is some ambiguity or wiggle room, ambition will propel them to exploit the uncertainty. The nondefense (or defense) of state statutes, like the power to initiate common law lawsuits, is one of many means by which state attorneys general can cater to their political base and advance their political careers. Red state attorneys general gain political advantage by refusing to defend gun control laws and by defending same-sex marriage bans; blue state attorneys general similarly gain by declining to defend same-sex marriage bans and by defending gun control laws.
We have emphasized the centrality of state law to the duty to defend. While crude generalizations are possible, the powers and duties of attorneys general are hardly uniform throughout the states. The fact that opportunistic attorneys general often insist upon a uniform approach to the duty to defend and give short shrift to state law should not obfuscate the supremacy and diversity of state law when it comes to the duty to defend. States are independent sovereigns that may react in fundamentally different ways to questions implicating the duty to defend and other matters related to the powers and responsibilities of their attorneys general. When a party challenges a state law on state or federal grounds, differences in how attorneys general may (or must) react should be embraced as part of our federal system. A desire to impose a uniform approach with respect to the duty to defend is at odds with the idea of states as laboratories of democracy. Correspondingly, federalism is undermined by the failure of attorneys general to meaningfully discuss state law when explaining whether they do or do not have a duty to defend.
Compared to issues related to the duty to defend at the federal level, the hazards of getting the wrong mix of defense, concession, and lawsuits are more easily remedied in the states.223 At the federal level, a unitary executive both enforces and defends federal statutes. If the president concludes a federal statute is unconstitutional and refuses to defend it, it is unclear if anyone outside of the executive can intervene to defend the law.224 Moreover, if the president considers a statute to be unconstitutional, there is good reason for the president to act on that belief and refuse to enforce the statute. Sometimes this means there will be no aggrieved individual to challenge the non-enforcement. Finally, even if many suppose that a constitutional amendment is warranted, it is next to impossible to reform the federal separation of powers through amendments.225
As a group, states exhibit much more flexibility on matters of defense. Most state constitutions are easy to amend, and all are easier to amend than the federal constitution, making it easier to respond to perceived problems with defenses (and nondefenses).226 Further, because state law typically allows someone other than the attorney general to defend state law, and because state law seems to facilitate judicial resolution of disputes in such situations, attorney general nondefense at the state level has fewer consequences than nondefense at the federal level.227 In the controversy over same-sex marriage, all states allowed the governor (or some other state official) to represent the state.228 Moreover, when someone challenges a particular state law as contrary to the federal constitution, and an attorney general refuses to defend that law, another attorney general may defend a similar state law. In other words, even if a case is dismissed because no one chooses to defend the controverted state law, the underlying issues may be adjudicated in another state. For example, even though the failure of the Attorney General and Governor to defend the Proposition 8 ban on same-sex marriage in California resulted in dismissal of that lawsuit,229 attorneys general in other states are vigorously defending their similar same-sex marriage bans. For example, after unsuccessfully defending its same-sex marriage ban before the Tenth U.S. Circuit, Utah’s Attorney General Sean Reyes petitioned the Supreme Court to hear its defense of the ban.230
Of course, the fact that refusals to defend come with few tangible costs does not mean that attorneys general should refuse to defend whenever they personally oppose a law or whenever they can reap political advantage. As a legal matter, state law may cabin their flexibility. Still, the combination of motive and opportunity will sometimes be too tempting to resist. Because attorneys general are apt to be politically opportunistic, there is good reason to expect a continued upswing in refusals to defend. The party polarization that fueled the same-sex marriage controversy is likely to propel other duty-to-defend controversies over such things as abortion, gun rights, campaign finance, and affirmative action.
The duty-to-defend question, grounded as it is on the complexities of state law and the imagined constraints of federal law, allows attorneys general to claim that their decisions not to defend are permissible, even obligatory, but that the decisions of others not to defend are unwarranted and lawless. Despite our arguments and appeal for a more state-centric understanding of whether there is a duty to defend, what seems relatively certain is that Republicans and Democrats will accuse the other side of playing politics and violating the rule of law, albeit without much grounding in actual law.
For the Appendix, please see the PDF of this piece.