Can State AGs Refuse to Defend State Laws?
Exploring when and why state attorneys general can choose not to defend controversial legislation in court.
State attorneys general (AGs) serve as the chief legal officers for their states, tasked with representing state interests in court. A key question arises: can they refuse to defend state laws challenged as unconstitutional? The answer varies by state constitution, statutes, and judicial precedents, creating a patchwork of approaches across the U.S.
The Core Role of State Attorneys General
Attorneys general are elected or appointed officials responsible for enforcing state laws, advising government agencies, and litigating on behalf of the state. Their duty to defend typically means appearing in court to uphold statutes against legal challenges. However, when an AG believes a law violates the U.S. or state constitution, tensions emerge between loyalty to legislation and oath to the constitution.
Historically, AGs defended nearly all laws, viewing it as essential to the rule of law. Courts, not executives, determine constitutionality. Yet, modern political polarization has led some AGs to selectively decline defenses, often for high-profile issues like marriage equality or voting rights.
Legal Foundations: Duty or Discretion?
No uniform federal rule mandates or prohibits state AGs from refusing to defend laws. The U.S. Constitution’s Supremacy Clause establishes federal law’s primacy but does not dictate state officials’ litigation choices. States retain flexibility to define the AG’s obligations.
- Mandatory Defense States: A minority require AGs to defend all laws with a reasonable argument, regardless of personal views.
- Discretionary States: Others grant AGs authority to decline if they deem the law indefensible, often requiring a “more likely than not” unconstitutional standard.
- Hybrid Approaches: Some allow refusal but mandate alternative counsel, like private attorneys or intervenors.
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This variation stems from state constitutions and statutes. For instance, some explicitly impose an “absolute obligation,” while others prioritize constitutional fidelity.
Federal Constraints on State AG Decisions
The federal Constitution indirectly influences state practices through anti-discrimination principles. If a state permits AGs to refuse defense against state constitutional claims, it must allow the same for federal claims to avoid favoring state over federal law.
Scholars argue the Supremacy Clause does not compel AGs to concede state law invalidity merely because they believe it conflicts with federal law. Governmental attorneys retain discretion in courtroom arguments, absent explicit constitutional mandates.
“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.”
Historical Precedents and Federal Analogues
Federal precedents inform state debates. A key 1990 Office of Legal Counsel (OLC) opinion states the U.S. Attorney General must generally defend congressional acts, even if constitutionally questionable. Exceptions exist only in “rare cases” where defiance is necessary to uphold constitutional duties.
At the state level, AG refusals have accelerated since the 2000s, coinciding with partisan divides. Pre-2010, bipartisan support for laws made refusals rare; today, they signal political alignment.
State-by-State Variations in Practice
| State Category | Examples | Key Rule | Notable Case |
|---|---|---|---|
| Mandatory Duty | Indiana, Tennessee | Defend all laws; courts decide constitutionality | Indiana AG defended despite personal disagreement |
| Discretionary | California, North Carolina | Decline if likely unconstitutional | CA Prop 8 refusal led to SCOTUS standing issue |
| Hybrid | Maine, Others | Refusal allowed; governor may sue AG | Maine AG Mills refused Gov. LePage actions |
This table illustrates the diversity. In mandatory states, AGs like Indiana’s Greg Zoeller argue refusal undermines judicial process, delaying resolutions.
High-Profile Refusals and Their Fallout
Same-Sex Marriage Bans
Before Obergefell v. Hodges (2015), Democratic AGs in states like California, Illinois, and Pennsylvania refused to defend marriage bans. California’s Prop 8 refusal prompted the Supreme Court to dismiss on standing grounds, as ballot sponsors lacked authority.
Bathroom Bills and Discrimination Laws
North Carolina AG Roy Cooper declined to defend HB2 (2016), which restricted transgender bathroom access, citing unconstitutionality. This fueled political battles, with courts eventually intervening.
Refugee Policies and Executive Actions
In 2018, Tennessee and Maine AGs refused to defend gubernatorial suits against refugee resettlement, deeming them unconstitutional. Courts dismissed the cases, affirming AGs’ discretion.
Arguments For and Against Refusal Rights
Pro-Refusal: Constitutional Integrity
Advocates argue AGs swear oaths to the constitution, not every statute. Refusing indefensible laws prevents wasting resources and upholds rule of law. It mirrors federal precedents allowing rare non-defense.
Anti-Refusal: Separation of Powers
Critics contend only courts judge constitutionality. AGs risk politicizing justice, eroding public trust. Refusals create adversarial proceedings within government, as seen in Maine where the governor sued the AG.
Political motivations exacerbate issues. Refusals curry favor with bases opposing certain laws, turning AG offices into partisan tools.
Practical Consequences of Non-Defense
When AGs refuse, states often appoint intervenors—private parties or officials stepping in. This prolongs litigation and raises costs. California’s Prop 8 saga delayed national clarity on marriage equality by years.
- Increased taxpayer expense for alternate counsel.
- Potential for inconsistent state positions in court.
- Risk of procedural dismissals on standing.
Judicial Oversight and Evolving Standards
Courts generally defer to state AG choices but scrutinize for abuse. Some rulings affirm AG discretion; others mandate defense if colorable arguments exist. Scholarly analyses criticize rigid “duty to defend” as outdated amid polarized politics.
FAQs
What triggers an AG to refuse defending a law?
Typically, a good-faith belief that the law is more likely than not unconstitutional under federal or state standards.
Can governors override an AG’s refusal?
In some states, yes—via lawsuits or appointing special counsel, as in Maine.
Does federal law require state AGs to defend all laws?
No; states define the duty, with federal limits only on discrimination against federal claims.
Are AG refusals increasing?
Yes, driven by partisanship since the 2010s, especially on social issues.
What happens if no one defends the law?
Courts may dismiss for lack of adversary or allow intervenors to proceed.
Future Implications for State Governance
As polarization grows, expect more refusals, prompting legislative reforms. Some propose clarifying statutes; others mandatory defenses with ethics checks. Balancing AG independence and legislative supremacy remains key.
This practice tests federalism, highlighting tensions between executive discretion and judicial authority. Ultimately, it underscores AGs’ dual role as both advocates and constitutional guardians.
References
- The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation — U.S. Department of Justice, Office of Legal Counsel. 1990-03-23. https://www.justice.gov/olc/opinion/attorney-general%E2%80%99s-duty-defend-and-enforce-constitutionally-objectionable-legislation
- Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty to Defend — Yale Law Journal. 2020. https://yalelawjournal.org/feature/state-attorneys-general-and-the-duty-to-defend
- Can a state’s attorney general pick and choose which laws to defend? — Los Angeles Times. 2016-04-18. https://www.latimes.com/opinion/op-ed/la-oe-0418-devinsprakash-attorneys-general-refusal-to-defend-20160418-story.html
- What Happens When the Attorney General Refuses to Defend a Law? — Governing.com. 2018. https://www.governing.com/archive/gov-attorney-general-refusal-defend-state-laws.html
- Refusing to Defend Unconstitutional Actions Happens All the Time — National Association of Attorneys General. 2018-03-29. https://www.stateag.org/tierney-blog/2018/3/29/refusing-to-defend-unconstitutional-actions-happens-all-the-time
- The Indefensible Duty to Defend — William & Mary Law School Scholarship Repository. 2018. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2298&context=facpubs
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