Fifty states, fifty attorneys general, and fifty approaches to the duty to defend.

• Author: Devins, Neal
• Position: Introduction into III. Political Ambition and the Duty to Defend, p. 2100-2144

INTRODUCTION I. THE SUPREMACY OF STATE LAW A. The Relative Unimportance of Federal Law B. The Dominance of State Law C. The Powers of Attorneys General as Constitutional Officers II. A SURVEY OF STATE LAW AND PRACTICES A. The Origins and Functions of the State Attorneys General B. State Law and the Duty To Defend C. Attorney General Opinions & Practices III. POLITICAL AMBITION AND THE DUTY TO DEFEND A. Politics in the Office of the State Attorney General B. Party Polarization and the Duty To Defend CONCLUSION: CONSEQUENCES AND DIFFERENCES APPENDIX I: STATE CONSTITUTIONAL AND STATUTORY PROVISIONS CONCERNING THE DUTY TO DEFEND APPENDIX II: STATE ATTORNEYS GENERAL REFUSALS TO DEFEND INTRODUCTION

Increasingly, state attorneys general (1) 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.

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.7 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 actual state 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...