Sorry – now that my question is clear, what do you think about the answer?
If I were in charge I’d enact legislation requiring the state AG to defend duly passed bills (or referenda). Had I not done so, I would take my lumps. In the particular case of California, the recall mechanism seems to be a suitable recourse.
Speaking as a future lawyer, I would be uncomfortable with a legal requirement for an attorney general to defend an enactment he doesn’t believe is constitutional and cannot defend in good faith.
Not planning on criminal law?
No, since a veto doesn’t require anyone to sue over the constitutionality of the referendum.
In the first instance where the issue is clearly unsettled, I think they should do what any lawyer does and put his personal beliefs aside and be the best advocate for his clients (the voters). Nobody who is doing the best for his clients has a decent argument and just stops at the District Court level when there is a good chance that higher courts will agree with you.
In the second instance, if the voters enact something that has unequivocally been decided as unconstitutional (like the voters approve segregated schools) then I agree that it is fruitless to defend the law. Maybe have some process in the executive branch to screen for this, but if there is a colorable argument to defend the law, the governor or the AG should do it.
Dear Og no. No family law either, if I can help it. If I have my druthers (which, the job market being what it is, I won’t) it will be civil appellate work and nothing else.
How is it that the S.Ct. found that the defenders of DOMA had standing but the defenders of Prop 8 did not?
I think that raises a separation-of-powers issue as an interference with the executive’s prosecutorial discretion.
The defenders of DOMA were the legislature that passed it. If the California assembly had defended Prop 8 they presumably would have found standing, but not for private citizens.
That’s my concern with Bricker’s hypothetical anyway, but I was thinking more in terms of a constitutional amendment than a statutory instrument. There’s no separation of powers issue then.
BLAG was actually an instrument of Congress, and I would imagine that the legislature that voted a bill into law is always going to have standing.
The proponents of Prop 8 were private citizens with no connection to the California legislature, so were considered in the same class as previous private citizens, as Kennedy’s majority opinion makes clear.
But why does a legislature that voted for a bill have standing when citizens who voted for a proposition do not? They’re playing the same role in enacting the law.
The legislature is an adverse party. The citizenry are not. They are the ones defending the enactment but also the ones challenging it.
I thought Kennedy didn’t join the majority in the Prop 8 decision.
The result in the Prop 8 case leads me to wonder if in future state referenda, a clause that devolves standing onto a third-party entity (without requiring the party to show harm) can be written into the text of the initiative itself, so as to provide for the case of the government declining to appeal an adverse judgement.
Or would such a mechanism require its own amendment to the state constitution?
How is the legislature adverse? Is there actually precedent indicating that legislators have a cognizable interest in having legislation that they voted for upheld?
Moreover, Congress was divided over DOMA; the Senate wasn’t taking part in the defense. If the Senate had submitted amicus briefing on the part of the challengers, would that have defeated the defenders’ standing?
In any event, are we just noodling the question, or did the Court ever actually address why BLAG had standing?
I don’t think either would work. The SCt decided standing based on Article III of the federal constitution, which would trump anything put into an initiative or a state constitution.
:smack:
Yes, I meant Roberts. I got the majorities on the two cases crossed.
It didn’t have to, as it happens. The DOJ appealed the trial court’s ruling and then effectively allowed BLAG to litigate the appeal on its behalf. The DOJ had standing and remained a party even though it took no part in the litigation.
Huh?
OK, then the governor sues, in his personal capacity, and refuses to allow the state to defend. Or he pays a bag lady $50 to file suit.
That’s hardly a refutation of the concern, is it?
Perhaps you’re unclear as to what a veto is. :rolleyes:
When an administration exercises a veto it stops the action in its tracks (which can also be overridden). If the governor sues (or hires a bag lady, or some other stupid shit) and refuses to defend the law, that doesn’t even come close to the same as a veto. Anyone with standing can step in and defend it, true? It’s not terribly hard to meet the requirements for legal standing, is it? If I show potential injury, can’t I jump aboard the defense wagon?
Seems a bit more of a hurdle to stop an action via this method than simply exercising veto power. There are also many potential options where this hypothetical governor wouldn’t prevail.
I think a good argument could be made that the state should defend such laws, but failing to do so is still not the same as veto powers.
There’s nothing in the US Constitution that states use binding referenda at all, even more amending their own constitutions (IIRC Delaware is the only state who’s constitution can be amended without one).
Right, and my cite fails me at the moment, but when a state chooses to institute a process, equal protection and due process must apply.
For example, Alabama can’t have a referendum in which only white people can vote and defend on the grounds of “Hey, we aren’t required to have a referendum at all, so nobody can say that their rights are being violated.”
The state under the 14th amendment must guarantee due process of law. If it chooses to have a referendum, it must comply with federal guarantees under the 14th amendment. It can’t be arbitrary, unfair, heavy handed, and violate all standards of decency just because the underlying activity was a discretionary act by the state.
Further, to answer another question, an individual legislator who voted against that law does not have standing to challenge it. It follows that a group of legislators who voted against the law also don’t have standing to challenge it. I would agree that there was no standing in the DOMA case as well, and can’t see a difference between the cases.
This might help, I have it in my notes since it deals with criminal law. There is no Constitutional right to a criminal appeal, however, if a state has them, they MUST comply with DP;
(b) When a State opts to act in a field where its action has significant discretionary elements, such as where it establishes a system of appeals as of right although not required to do so, it must [469 U.S. 387, 388] nonetheless act in accord with the dictates of the Constitution, and, in particular, in accord with the Due Process Clause. Pp. 400-401.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=469&invol=387