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Bench Memos

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Holder Encourages Dereliction of Duty by State AGs



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In the last several weeks, Ed and I have noted state attorneys general who abandoned the most basic duty of an AG: to zealously defend the laws of their state. (Ed even wrote an article about it.) Worse still, these AGs decided to break their oaths of office by refusing to defend marriage-definition laws with which they disagree.

We can now add another AG to the list: Eric Holder. AG Holder may not be a state attorney general, but he definitely has opinions about how the state AGs should do their job. In an interview yesterday with the New York Times, he declared that state AGs are not obligated to defend laws that they disagree with, and indeed, are obligated to apply what the New York Times called the “highest level of scrutiny” in a decision to defend the law. And this even starting with the assumption that the law is valid.

Holder has it exactly backwards. The AG’s proper role is to defend the laws of the state because he is a lawyer representing the state. It is for courts to subject the law to scrutiny, reserving the “highest level of scrutiny” for those that implicate core constitutional rights. Only if an attorney general can find no non-frivolous legal argument in favor of the law may he decline to defend it. Apparently Holder would prefer that state AGs play philosopher-king (much as the president has done) by simply declining to enforce valid laws without ever giving a court the chance to actually decide whether it is valid.  

But we live in a nation of laws, not a nation of lawyers. In our constitutional system the laws were passed by Congress and the president has that one chance to use his veto power. States work the same way, with laws being enacted by the democratically elected legislatures or even by popular referendum. Once a law is duly enacted it cannot be unilaterally repealed by one government official, even if they have the blessing of the U.S. attorney general. 

Of course, it’s no surprise that this inducement to lawlessness comes from an administration that seems to view the Constitution and the laws merely as obstacles to their grand plan. From their perspective, refusing to uphold the law is just another day at the office.



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