WASHINGTON — Pennsylvania Attorney General Kathleen Kane is refusing to defend a new state law that allows the National Rifle Association to sue over local firearms regulations, and it isn’t the first time she has bucked the legislative branch’s intentions. Last year she notably refused to defend against a lawsuit challenging the state’s ban on same-sex marriages.
And she’s no maverick among attorneys general. Many others across the country also are refusing to uphold laws they deem unconstitutional, raising questions about where the line lies between discretion and dereliction of duty.
In Indiana, Attorney General Greg Zoeller refused to defend parts of his state’s immigration law after the U.S. Supreme Court had deemed unconstitutional similar provisions in Arizona law. In New Jersey, Acting Attorney General John J. Huffman declined to participate in appeals involving two gun statutes. And in Virginia, former Attorney General Ken Cucinelli refused to defend a law allowing the state to take over failing schools, saying he thought the measure to be unconstitutional.
Some appear to be following the lead of outgoing Attorney General Eric Holder, who in February told members of the National Association of Attorneys that they needn’t enforce laws they deem to be unconstitutional, particularly those banning same-sex marriage.
But, Mr. Holder cautioned them, “Any decisions at any level not to defend individual laws must be exceedingly rare. They must be reserved only for exceptional — truly exceptional — circumstances, and they must never stem merely from policy or political disagreements, hinging instead on firm constitutional ground.”
In 43 states, including Pennsylvania, attorneys general are directly elected and therefore held accountable by the electoral process.
Legal scholars say it becomes problematic when attorneys general use constitutional interpretations as cover for ideological objections.
“It’s probably true that the judgments that executive enforcement officers make about constitutionality of statutes they’re called on to enforce are somewhat influenced by their policy views,” said Professor John C. Harrison of the University of Virginia School of Law.
That’s why few Republicans see same-sex marriage bans as unconstitutional, while Democratic attorneys general across the country have been refusing to defend them, saying they violate the equal-protection clause.
And it’s not just state attorneys general.
Mr. Holder, for example, isn’t challenging state marijuana legalization statutes that conflict with federal law. Second, he directed federal agents in Colorado and Washington, where marijuana use is legal, to focus on drug trafficking and sales to minors instead of prosecuting people who possess small amounts legal under state laws.
Most recently, selective enforcement also is a point of contention in President Barack Obama’s recent executive order on immigration. Presidents cannot change laws passed by Congress, but the White House says it can order executive branch employees to disregard them.
Conservatives predictably disagree. They say that as their government’s top legal advisers, attorneys general are required to argue their client’s side zealously. And, in federal cases, they point to the constitutional requirement for the executive branch to “faithfully execute” the laws.
Republicans in Congress say the president’s immigration policy is an overreach of executive branch authority.
But Mr. Holder has said that he and the president both have “a vast amount” of discretion over whether to prosecute.
During a hearing last spring he told the House Judiciary Committee that he has to use discretion appropriately to ensure he is acting “within the aims of the statute, but at the same time making sure [to be] acting in a way that is consistent with our values, consistent with the Constitution and protecting the American people.”
The Obama administration isn’t the first to use executive authority to essentially bypass laws approved by Congress.
President George W. Bush, for one, used signing statements to reserve the right not to enforce parts of laws. For example, in signing a 2006 law banning inhumane treatment of foreign detainees, Mr. Bush issued a formal statement saying he might waive the prohibition under his executive authority if doing so would prevent a terrorist attack.
Legal scholars say prosecutors historically and necessarily exercise great discretion – particularly over which cases to prosecute. Otherwise, their offices would be overwhelmed.
But attorneys general can become conflicted when following state statute runs counter to their interpretations of state and federal constitutions.
“In those types of decisions we’ve always trusted the prosecutor, and there’s nothing wrong with a prosecutor exercising that discretion. There is no duty to enforce every law in every case,” said Professor Alan Chen of the University of Denver’s Sturm College of Law.
Professor Jules Lobel of the University of Pittsburgh School of Law agreed.
“It’s legitimate for an attorney general who feels a law is patently unconstitutional to say, ‘I’m not going to defend this,’” Mr. Lobel said. The trouble is when they make those decisions based on ideology or moral authority rather than on constitutional grounds, he said.
Often, the public never knows about cases that are not prosecuted or laws that are not being upheld.
More recent cases are getting public attention because they involve hot-button issues such as gun control and same-sex marriage, and because attorneys general are publicly proclaiming their intentions.
“It’s not like these are hidden decisions. These people are putting themselves out there,” Mr. Chen said.
In 43 states, including Pennsylvania, attorneys general are directly elected and therefore held accountable by the electoral process.
“There is a political solution,” Mr. Chen said.
That’s true, but — at least when it comes to criminal laws — there’s a down side to announcing intentions not to enforce. Would-be criminals are more likely to break the law if they know they won’t be prosecuted, Mr. Harrison said.
“It will have an effect on people’s behavior, but it’s also true that the clearer these positions are the more the public can have a say” at the polls, he said.
Washington Bureau Chief Tracie Mauriello: tmauriello@post-gazette.com, 703-996-9292 or on Twitter @pgPoliTweets.
First Published: December 21, 2014, 5:00 a.m.
