Holder and the state Attorney's generals

[hrothgar]

Anyone else annoyed at Holder telling the various state attorney general's that they don't need to defend various state laws if they disagree with them?

 

Don't get me wrong, I consider the various state laws that were passed to discriminate against gays to be abhorrent.

With this said and done, I don't think that the attorney general of a state should be allowed to decide which laws he will uphold and which he won't.

 

I disliked the Obama administration's decision not to defend DOMA.

This is every bit as bad.

[Bbradley62]

If you require attorneys general to defend laws when they think they are wrong, you very well might get a half-assed effort. It might be better to allow them to opt out of that defense, and allow the legislature to defend the law if they think the law is appropriate.

[barmar]

Defend or enforce?

[kenberg]

I saw the news story but I didn't look into it closely. My first thought would be: Did anyone ask him? I don't see why the Attorney General for the U.S. needs to tell the states/ attorneys general whether they do need to enforce state laws or do not need to enforce state laws.

 

The general concept is crazy. I would think that if a state Attorney General decides that he isn't going to enfored a law because he doesn't like the law he should quit or he should be fired. But isn't that up to the state? Just why Holder feels the need or the right to give advice on this beats me.

 

And it is just bad psychology. Legislators can grandstand and pass stupid laws, no problem, they won't be enforced. Until they are enforced and some poor schmuck lands in jail for violating a law that hadn't been previously enforced.

[Winstonm]

I have found little about Holder to like, even though I am registered as a Democrat.

[kenrexford]

The entire debate here is mind boggling to me as an attorney. I agree with the problem that Holder raises implicitly, but not his solution. The problem is with enforcement of conflicting laws. If any attorney general has a duty to enforce both the statute enacted by his State legislature and the United States constitution, and if they seem in his legal analysis to conflict, there's a problem. But, there's a solution other than picking one. His approach of picking his interpretation of the Constitution is dumb. The counter argument of picking the statute is equally dumb. The correct solution for the problem is what is called an action (lawsuit) seeking "declaratory judgment. " in other words, you petition the courts for a ruling on which controls and live with the result. You might appeal to the highest court, but fine. Get a ruling. When the attorney general argues the case, he can argue both sides to the courts, because that's what he's claiming, that both sides have merit but conflict.

[barmar]

Do AG's usually make decisions like this on their own? My impression is that it usually comes from their Governor.

[Bbradley62]

The vast majority (43) of state AGs are elected independently of their states' governors; they certainly should act independently of the governor. Those who are appointed, well, maybe not...

[barmar]

They're part of the Executive branch, aren't they? So the Governor is their boss.

[Bbradley62]

I'm not an expert on such things, but it appears to me that the majority of state AGs do not report to the governor (especially not those appointed by either the legislature or the state supreme court). The AG may even launch an investigation into the governor's office, if (s)he sees fit.

 

Edit: I'm sure we could find at least one state AG who is part of the "action" against the Affordable Care Act who is acting against the wishes of his governor.

Edited March 3, 2014 by Bbradley62

[ArtK78]

State Attorneys General and the U.S. Attorney General are obligated to determine whether a law they are requested to enforce is constitutional. In the absence of a ruling by the highest court in the jurisdiction (in the case of the US, the US Supreme Court), the mere passage of a law by the State legislature or the US Congress does not mean that a law is constitutional, and the AGs can determine on their own whether to enforce the law. Once the highest court in the State (or, in the case of the US Attorney General, the US Supreme Court) rules that a law is constitutional, the AG is obligated to enforce the law regardless of his personal determination of the constitutionality of the law.

 

Generally speaking, State Attorneys General and the US Attorney General defer to the legislature. But there are exceptional cases in which they choose not to enforce a law.

 

In the case of State Attorneys General, the constitutionality of a state law is determined in reference both to the US Constitution and the State Constitution. While the highest court of a state is the final authority as to whether a law is constitutional under the State constitution, it is not the final judge of whether a statute is constitutional under the US Constitution - the US Supreme Court is the final authority on that.

 

If a State Attorney General or the US Attorney General refuse to enforce a law, any aggrieved party may sue to require the AG to enforce the law.

 

About 20 years ago, the US Congress passed a law making it a CRIMINAL OFFENSE for an attorney to advise a client as to his or her options regarding LEGALLY sheltering assets from State Medicaid authorities while making himself or herself eligible for Medicaid assistance for nursing home care. Janet Reno, the then-Attorney General of the US, refused to enforce the law. No one challenged the failure to enforce the law, and it was eventually repealed. Since then, the US Congress made the Medicaid laws much more onerous, and that has eliminated much of the Medicaid planning that attorneys like me used to advise our clients to do.

 

The fact that Attorney General Holder is informing State Attorneys General that they can choose not to enforce laws that they believe are unconstitutional should not be earthshattering news.

 

By the way, a State Attorney General has no authority to refuse to enforce a federal law such as the Affordable Care Act. It is not the job of a State Attorney General to enforce federal laws. The US Attorney General, through the local US Attorney's office, is responsible for enforcement of federal laws.

[kenberg]

I consider myself fortunate, and claim some credit for common sense, in that I have had t spend very little time in my life worrying about arcane legal stuff. Also, I did not study in detail just what Holder said. But a could of questions:

 

1.

Richard said " they don't need to defend various state laws if they disagree with them?\"

Art refers to the constitutionality of the law.

Holder said what? Sorry to have to ask, no doubt it is in the record somewhere.

But disagreeing with a law and having doubts about its constitutionality are not the same thing.

 

2.

I'm still not clear on why Holder felt he had to give state AGS advice about state laws. I can see one possibility: If the enforcement of a state law, simply the act of enforcement, would be a violation of federal law then of course the US AG can advise state4 AGs that they risk being prosecuted. Other than that, it would appear to me to be a state matter, resolved in perhaps different ways in different states. A state AG, for whatever his reason, enforces or refuses to enforce a state law. Just does a federal AG believe that he has to weigh in on this?

 

 

And now a comment:

 

I really dislike this idea of unenforced laws. It leads to arbitrarily enforced laws. Marijuana is the obvious example. I've never smoked pot in my life and won't be starting now even if it becomes legal, but I don't care if the guy next door does and I really don't want to pay room and board for a bunch of guys picked up for using it. Still, I think we arrest people who smoke pot or we scrap the law. Preferably the latter. As it is, we arrest people for pot if we don't like them.

 

If a state law is perhaps in conflict with a federal law, or in conflict with the state constitution, then this needs to be resolved and I gather from kenrexford's post that there are ways to do this., Putting enforcement on hold while awaiting a hopefully speedy resolution of the legal issues is just good sense. but that assumes that there is a serious effort to resolve the legal issues. If the AG just says "I don't like it, I don't need anyone's advice, i'll just not enforce it" I think that's arrogant and he should be called on it.

 

And I still don't see that it is any of Holder's business.

 

I am really glad i don't have to deal with lawyers. No offense, but it makes my head spin.I of course recognize that when you need one, you need one, and it is important to have a good one. I am happy to not need one.

[PassedOut]

I am really glad I don't have to deal with lawyers. No offense, but it makes my head spin.

One of my good friends as an undergraduate, Leona, went on to law school and became a criminal attorney. My first wife and I visited Leona one time when she was defending a murder case, and Leona was enthusiastically going over the case with us. Her client was accused of riding his motorcycle from Iowa to the west coast, murdering a couple of his in-laws there, and then returning to Iowa.

 

Looking over the materials Leona laid out, I saw that the prosecution's evidence included the fact that her client's credit card was used to buy gasoline in a town close to the murders on the day of the murders and that his driver's license was used there to verify his identity. When I asked Leona about that, she bristled immediately.

 

"All that proves is that my client's credit card and driver's license were there that night! That proves nothing about my client!"

 

(Her client was eventually convicted.)

 

On another visit, Leona described a case where one of her clients had been compelled to give testimony about what had occurred at a particular meeting. The client did not want to provide that testimony, nor did Leona want him to do so. She had him practice saying the phrase, "we discussed certain matters," with no further elaboration. Her client simply repeated that phrase in response to every question, and his doing so satisfied the requirement. Leona was so pleased!

 

The lawyer Leona is quite different from the undergraduate Leona. I do attribute that to law school.

[billw55]

2.

I'm still not clear on why Holder felt he had to give state AGS advice about state laws. I can see one possibility: If the enforcement of a state law, simply the act of enforcement, would be a violation of federal law then of course the US AG can advise state4 AGs that they risk being prosecuted. Other than that, it would appear to me to be a state matter, resolved in perhaps different ways in different states. A state AG, for whatever his reason, enforces or refuses to enforce a state law. Just does a federal AG believe that he has to weigh in on this?

Obviously, Holder has no authority over state AGs regarding state laws. Therefore, equally obviously, his "advice" is actually a political statement from the Obama administration. In this case, one which I approve of.

 

Broadly speaking, state AGs (and the US AG for that matter) can and should decline to enforce or defend laws which they can plainly see are unconstitutional and destined to fail on appeal. Why waste public resources on prosecutions or other proceedings that are destined to fail? I suppose if the population of such a state really wishes to waste resources in this way, they can elect an AG who will carry through the fruitless efforts. Either way, these bans are not standing up. I am actually interested to see which states, if any, remove their AG over such a decision.

 

Meanwhile in Michigan, the state attempted to call an out of state law student as an expert witness in their defense of the state SSM ban. The judge dismissed him for lack of credentials. If this is the best the state can do, their case isn't looking good.

[billw55]

The lawyer Leona is quite different from the undergraduate Leona. I do attribute that to law school.

And to the fact that the justice system is designed as adversarial. Leona is obligated to act in such a manner to properly represent her clients. Quite possibly, she could be disbarred for failing to do so.

 

A friend of mine is a public defender in Chicago. He frequently defends murder cases. And he will happily go on great length about the abuses perpetrated by the CPD. How much is accurate? Knowing him, probably most of it. Are his clients guilty anyway? Usually. But he has his role to play, by law.

[kenberg]

I am not on any sort of anti-lawyer crusade, as I said when you need one you want a good one. And yes, the lawyer's job is to protect his client, within the limits of the law.

 

Nonetheless, I can bemoan the fact that as soon as the lawyers get into it, it gets weird. The discussion of Holder provides an example.It seems clear to me that a state AG is supposed to enforce state laws, and that a federal AG should butt out unless there is a federal law in direct substantial conflict with the state law. I will go to my grave thinking that this is obvious.

[billw55]

It seems clear to me that a state AG is supposed to enforce state laws,

There might be a difference between enforcing a law and defending a suit against that law. For a law to be "enforced," it would first have to be transgressed, and then the police would have to arrest the offender and present the matter to the AG. Then, enforcement could happen. For example, if a county clerk chose to issue marriage licenses to same sex couples, in violation of such a law. Or, the actual couple that got married. I have not heard of any such cases being prosecuted. Would they bother prosecuting - or would they just declare the marriage invalid? Are penalties for violations even presented in the laws? So many questions.

 

Defending a suit isn't the same thing exactly. So far AGs seem comfortable simply declining to do so, with no apparent repercussions. Is there some law or rule that obligates them to defend? Or is this part of their discretion? Each state might be different.

[Bbradley62]

Defend or enforce?

Richard said " they don't need to defend various state laws if they disagree with them?\"

Art refers to the constitutionality of the law.

Holder said what? Sorry to have to ask, no doubt it is in the record somewhere.

But disagreeing with a law and having doubts about its constitutionality are not the same thing.

From what I can see of several online news reports, including the original NYTimes report, Holder appears to have been very carefully to consistently refer to

defending laws that state AGs think violate the US Constitution, based on recent court cases on several levels and in several jurisdictions, while avoiding commenting on enforcing such laws.

[kenberg]

From what I can see of several online news reports, including the original NYTimes report, Holder appears to have been very carefully to consistently refer to

defending laws that state AGs think violate the US Constitution, based on recent court cases on several levels and in several jurisdictions, while avoiding commenting on enforcing such laws.

 

This would be good. As mentioned, i have not paid such close attention. Something such as you are saying in fact seems to be suitable for his comment.

[PassedOut]

And to the fact that the justice system is designed as adversarial. Leona is obligated to act in such a manner to properly represent her clients. Quite possibly, she could be disbarred for failing to do so.

 

A friend of mine is a public defender in Chicago. He frequently defends murder cases. And he will happily go on great length about the abuses perpetrated by the CPD. How much is accurate? Knowing him, probably most of it. Are his clients guilty anyway? Usually. But he has his role to play, by law.

No one who knows Leona doubts her spirit and determination. As a teenager she was raped by a police officer in a the back seat of a patrol car and then fought tooth and nail to make sure that he faced justice. She's certainly going to fight for her clients to the best of her ability, and I'd expect no less.

 

What I did not expect was her reaction in a private setting with two old friends. I expected her to acknowledge the strength of the evidence against her client and was interested in how she planned to counter it. I can say that had I been on the jury, the statements that she made would not have been convincing.

[billw55]

I can say that had I been on the jury, the statements that she made would not have been convincing.

Interesting. If I was on the jury, I would consider the credit card and driver's license as evidence that the accused was within several miles of the murder, near the time it happened. No more than that. If that was all the evidence, no conviction from me. I assume there was more, else I can hardly believe the prosecutor would bring it to trial.

[kenberg]

 

Looking over the materials Leona laid out, I saw that the prosecution's evidence included the fact that her client's credit card was used to buy gasoline in a town close to the murders on the day of the murders and that his driver's license was used there to verify his identity. When I asked Leona about that, she bristled immediately.

 

"All that proves is that my client's credit card and driver's license were there that night! That proves nothing about my client!"

 

Well, it depends on the details, I suppose. If the license "was used to verify his identity" I suppose that means someone looked at a license, presumably (?) with his picture on it, and thought that the picture matched his face. Of course it's tru that sometimes these identity checks are pretty casual but it seems implausible that soneone else was using his identity. So then we aks about " her client's credit card was used to buy gasoline". This means the card was run through a machine that recorded the numbers? Ok, maybe someone stole his credit card and his driver's license, used use to the card to buy gasoline, and used the license to make the cc work. A pretty cool customer, just for the pleasure of a tank of gas. Now did the client notice that he was missing his cc and his license?

 

 

I think that I would be willing to conclude, absent some further stuff that I haven't heard, that the client bought some gas at the indicated station. That doesn't mean he killed anyone but if he is claiming he was never anywhere near the place I think I would not believe that More evidence would be required to convict him, but it seems like a plausible argument that he was in the area and if there are other reasons, death threats or money or whatever that would provide some motive, I think we are getting there. Still not enough, but we are getting there.

 

So Leona would be upset with me also, I guess. I can be upsetting. But if she is going to argue to a jury that the gas purchase has no value at all, I will have done her the favor of saying that this would probably not fly with me. Better look elsewhere. Or maybe use pre-emptive challenges against 75 year old retired profs.

 

I'm sure we could cope with the clash and move on to another drink. Intensity doesn't bother me. Much. Usually.

[PassedOut]

Interesting. If I was on the jury, I would consider the credit card and driver's license as evidence that the accused was within several miles of the murder, near the time it happened. No more than that. If that was all the evidence, no conviction from me. I assume there was more, else I can hardly believe the prosecutor would bring it to trial.

The defense, as I recall, was that the client was in Iowa at the time of the murders, and that there was insufficient time for him to have gone to the west coast, committed the murders, and returned to Iowa between the times that the defense witnesses claimed to have seen him in Iowa.

 

Of course Leona had a great deal of additional information, as did the prosecution, and this conversation occurred many years ago. It is simply this particular exchange that stayed with me. It's possible that Leona's anger was at least partly in reaction to the manner in which I questioned her. That happens sometimes.

 

As Leona portrayed the trial, the prosecution had entered the motorcycle as evidence and it sat in the courtroom in full view of the jurors, lighted (in Leona's opinion) in a way to make appear as sinister as possible.

[billw55]

A relevant news item

 

Apparently, one governor at least has decided to bypass his AG who declined to defend an SSM ban. Although, there seems to be no move to dismiss or otherwise punish the AG. In fact the governor's comments as quoted in the article give no indication of an anti-SSM position.