Bench Memos

Red Herrings

As I’ve discussed, the elementary propositions that even the Washington Post recognizes lead readily to the conclusion that Mark Herring, Virginia’s new attorney general, violated the duty of his office in announcing that he wouldn’t defend Virginia’s marriage laws (and in taking the additional step of joining the plaintiffs challenging those laws). In particular, a state attorney general’s obligations as a lawyer for the state and its people require him to vigorously defend state laws—including, of course, state constitutional provisions—against federal constitutional challenge so long as there are reasonable (i.e., non-frivolous) grounds for doing so.

I’ve now read AG Herring’s full account (see pages 1-7 of his brief) of his bases for refusing to defend Virginia’s constitutional and statutory provisions on marriage. They are laughably weak.

To his credit, Herring doesn’t make the (utterly implausible) claim that there are no reasonable grounds on which Virginia can defend its marriage laws. Indeed, he relies in part on the fact that other governmental parties will continue to defend Virginia’s marriage laws (pp. 6-7), and he commits “to ensure that both sides of the issue are responsibly and vigorously briefed and argued.” If there were no reasonable grounds for defending Virginia’s marriage laws, it would of course be impossible to “responsibly” defend them.

Herring instead posits that he has plenary authority to exercise his “independent judgment” that Virginia’s marriage laws violate the federal Constitution. But let’s look at his arguments:

1. Herring contends that “it is not unprecedented” for Virginia attorneys general to exercise “independent constitutional judgment” to conclude that a provision of Virginia law “violates the federal Constitution” and to refuse to defend it. He offers two supposed precedents.

a. Herring cites attorney general Ken Cuccinelli’s decision last year in which he “declined to defend a constitutional challenge to the law establishing the Opportunity Educational Institution.” But Cuccinelli’s action provides no support for Herring for two reasons.

First, as Cuccinelli has made clear, he was applying the standard that Herring rejects—that the attorney general may decline to defend a Virginia law only “when he concludes that there is literally no legitimate argument to be made in defense of that law or constitutional provision.”

Second, the “constitutional challenge” to the law in that case was made under provisions of the state constitution. It’s one thing for a state attorney general, acting as the lead lawyer for a state, to determine that provisions of state statutory law don’t comply with the state constitution. In so doing, he is determining what state law, read as a whole, means; he is not acting in opposition to his client. It’s quite another for a state attorney general to believe, as Herring does, that he is free to indulge his “independent judgment” to conclude that defensible provisions of state law violate the federal Constitution—to have, in other words, his own personal legal conclusions trump the legal position of his client.

b. Herring also claims that an amicus brief that former Virginia attorney general Jerry Kilgore signed in 2003 “explain[s] that an attorney general is duty-bound to challenge a statute he believes to be unconstitutional.” But here again, Herring completely misses the fundamental distinction between a state constitution (which, for a state attorney general, sets forth his client’s paramount legal positions) and the federal Constitution (against which the state attorney general is obligated to defend all state laws that can reasonably be defended).

The amicus brief that Herring mistakenly invokes was filed in the case of Davidson v. Salazar in the Colorado supreme court. (The Westlaw cite for the brief is 2003 WL 23221412.) In that brief, 44 state attorneys general defend the authority of the Colorado attorney general to “seek[] to enjoin the enforcement of newly-enacted legislation that he believes violates the Colorado Constitution.” The brief emphasizes the Colorado attorney general’s “prerogative and duty to initiate litigation on behalf of the people of the State of Colorado … particularly when such litigation is necessary to uphold and defend the Colorado Constitution.”  It highlights “the Attorney General’s efforts on behalf of the people of Colorado to ensure compliance with the state’s constitution,” which “reflects the will of the people.”

Thus, the only plausible understanding of the passage that Herring plucks out of context—“When, as here, [the attorney general] believes a statute violates the constitution, he has a paramount obligation to defend the constitution he is sworn to uphold”—is that the attorneys general are referring exclusively to state constitutions. In the broader context of the brief, only someone very dim-witted could misunderstand this passage to support the radical proposition that Herring embraces. [Addendum: Further, the brief does not address at all how a state attorney general should go about determining whether a state statute violates the state constitution. It is thus entirely compatible with the general proposition that the state attorney general should exercise a strong presumption that the state constitution and the state statute are compatible.]

2. Herring argues that the “propriety” of federal officers’ “not defending unconstitutional laws is well established under the federal Constitution.” (Pp. 3-5.) And so it is, and rightly so. But that helps Herring not at all. As I discussed in my House of Representatives testimony in 2011 on the Obama administration’s irresponsible failure to defend the federal Defense of Marriage Act:

Over the last several decades, presidential administrations with very different theoretical understandings of the president’s authority to interpret the Constitution have embraced the general proposition that, with the exception of laws that intrude on the executive branch’s constitutional prerogatives, the Department of Justice should vigorously defend the constitutionality of any law for which a reasonable defense may be made in the courts.

In other words, the standard that federal officers responsibly apply to defending federal laws against federal constitutional challenge is the one that Herring has refused to apply. Further, Herring again fails to grasp the elementary point that while the practice of federal officers with respect to federal constitutional challenges to federal laws might provide some insights into how state officers should deal with state constitutional challenges to state laws, it properly says nothing about how the state’s top lawyer should exercise his legal duty to defend state laws against federal constitutional challenge.

3. Herring also cites a provision of the Virginia constitution that “adds an additional layer to these considerations”—namely, the section that provides that “all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” (Pp. 5-6.) But Herring proceeds to give zero consideration to this provision, which obviously cuts against his effort to undermine Virginia’s marriage laws.

In sum, Herring shows himself utterly unable to offer any serious basis for his failure to defend Virginia’s marriage laws.


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