A future pro-life Attorney General refuses to defend a law that requires clinic protesters to stand a certain distance away from abortion clinics, because, he says, his view is that the law is unconstitutional.
Same analysis?
I disagree. The previous administration was defending the law. The people of Virginia obviously didn’t like that because they elected a guy who campaigned for marriage equality. So the people get an AG that is doing what they wanted. That’s how the system is supposed to work.
Or do you think that the US Justice department should still be basing its policies on those of Edmund Randolph?
An official in a high position of authority (such as an attorney general) has much more responsibility than a beat cop to exercise discretion with his finite resources and use them to – to put it in a phrase that you no doubt heard from time to time – “go chase the real criminals”.
Of course.
I might say he’s wrong about the Constitution, but I wouldn’t say he wasn’t doing his duty as he sees it.
That’s really not how the system is supposed to work. What’s supposed to happen is that the “people of Virginia,” discontent with the law, change the law. They elect an AG to defend the law, whatever it is. There are very limited scenarios where I’m okay with the AG declining to perform that duty (almost exclusively in seperation of powers situations), but broadly speaking the way that the law (at least in Virginia) is supposed to change is by legislative action, not by default judgment.
Although a tangent, having lived through the last Virginia election, I had no idea what Herring’s position was on same-sex marriage. He may well have “campaigned for marriage equality,” he certainly voted in favor of the ban on same-sex marriage, but down here, it was all about abortion.
The U.S. Constitution is also the law - the supreme one. The AG takes an oath to uphold it.
False. The law can also change when a court overturns it as unconstitutional. Which is what the AG believes should happen, and is acting to support.
You were down south, I presume. Up in Northern Virginia, Herring actually talked about gay marriage a bit. And talked alot more about abortion, as in protecting abortion rights.
BTW, as Herring will be pointing out alot, the previous AG (a conservative Republican) also refused to uphold a law because he thought it was unconstitutional.
Sure, the law can change if struck down by a court. But that’s not the way the discontent of the people with the current law is supposed to work, so I’m not sure how my claim is “false.”
Look, maybe I’m in a minority, and that’s fine. As far as I’m concerned, the AG is a lawyer who has an obligation to his client (Virginia) to represent her policies in court. Her policies are, properly, set by the legislature, the people, or the appropriate regulatory agency. As a lawyer, I’m ethically required to zealously advocate for my client, whether or not I think their position will win and certainly whether or not I think it should win. If I can’t do that, I don’t take on the representation. I view the AG in a similar light. There are exceptions (I wouldn’t think, for example, the AG is required to support a local prosecutor in an appeal of an obviously wrongful conviction; but that’s becuase criminal prosecutions are different and it doesn’t create the same set of separation of powers problems. I would object, however, if the AG refused to defend, on appeal, any conviction for the crime of, let’s say, carrying a concealed weapon at a public university becuase he thinks it’s unconstitutional). The General Assembly passes laws, the AG defends the laws, the Court determines the validity of the laws. That’s how it should work.
I’m in Richmond. Down here it was all contraception and abortion. Vote Herring, becuase Mark Obenshain will rape your woman and enslave your children. I would have been surprised to learn that Mark Herring stood for anything.
I disagree with that too.
He didn’t campaign for marriage equity and, as has been said, was vocally against it for years. His change of heart is recent.
From the Wiki page on Prop 8
Why isn’t it “supposed” to work that way? It’s simply part of the process under the Constution. I’d say laws that violate the Constitution are supposed to be struck down.
I understand the comparison, and normally it’s a good one, but an AG is not the same thing as a lawyer representing a client. An AG takes an oath to “represent” the Constitution too.
But that’s not how it works, nor is it how the AG is really set up to work. He’s more than just a hired lawyer. He’s a bit like a judge too - required to uphold the Constitution. Just as he can issue opinions saying a law or policy wouldn’t be legal, or constitutional, if passed, he can say that one that has already been passed is unconstitutional.
I think I can tell who you voted for.
Correct me if I’m wrong, but in this case while the AG might not defend the law, the clinic should be able to as an affected party. The difference in California, as I understand it, was that proponents of Prop 8 could not show they had any stake in whether it was overturned, in part at least because they could not show any harm from it being overturned.
P.S. if the AG were just a lawyer representing the state, we would just hire one when we need him rather than elected him to a state office. He’s more than that.
I would guess that the reason this is an issue is because people - correctly or not - feel that it’s about dislike of the law rather than a genuine constitutional issue, especially given his history WRT this issue. And if it was a law whose aims he generally supported or was at least neutral about, and he decided that based on his understanding of the constitution he could not support the law on legal grounds, their would be less opposition to this decision. But the idea that anyone could accomplish political aims in this manner is something that makes people uneasy.
Which is not to say it’s correct. But I suspect that this is a lot of what’s behind it.
What I was responding to was the claim that the election of Herring (the champion of marriage equality) evinced the people’s distate with the law and his refusal to defend it was how the democratic process was supposed to work.
No he doesn’t. He takes an oath to “support” the Constitution (both of them) and exercise his duties; it’s not totally dissimilar to the oath than any other lawyer takes when being admitted to the bar. It doesn’t require you only represent clients who you think have the stronger legal position.
The AG, over the course of his tenure, is going to have to deal with conflicts between state and federal law and between the state and federal governments. Most often on topics far less sexy than marriage (like preemption). I expect him to advocate for the laws of Virginia to the best of his ability. In your view, has he violated his oath if he supports a law that turns out to be unconstitutional? Has he breached his duty to his documentary client?
So, he can provide legal opinions to his client? How do you think the practice of law works? What evidence do you have for the proposition that he’s “like a judge”? He can’t declare laws unconstitutional.
Actually, I grappled with the issue a great deal. I found Obenshain quite off-putting. Focusing on the unappealing nature of Obenshain (even if exaggerated) was a perfectly sensible tactic (it’s what McAuliffe did too). Northam didn’t even need to exagerate, he just sat tight and let the other guy look like a wacko. (I never saw a single Northam add all election; voted for him anyway). I was just surprised at the fact that Herring campaigned on a heavily same-sex marriage platform; all I saw was his: “not the crazy guy” platform.
Same question to you. When a duty to uphold the constitution is in direct conflict with a duty to uphold duly passed laws, which duty comes first?
My issue here is that gay marriage bans haven’t actually been shown to violate the Constitution. In an area of settled constitutional law, I don’t have a problem with an AG refusing the fight an appeal. If the VA legislature passed a law making the practice of Islam illegal, I’d want an AG whose got sense enough to say, “There’s no way an appeal can possibly succeed, so I’m not going to waste my time or the taxpayer’s money on this.” But SSM isn’t there yet. As much as I support the outcome, I’m not thrilled with a state AG interpreting the Constitution on an unsettled matter like this.
Sure, the AG has other duties than merely representing the state in civil suits. He has law enforcement obligations; he has prosecutorial obligations. (I assume those are the reasons that’s he elected; same with Sherriffs). He has “in-house counsel” type responsibilities for state agencies. None of that changes, in my opinion, his obligation when wearing his “chief litigator” hat.
Sure. I have no idea if the protest laws will be ruled constitutional but I could understand if an AG concludes that it isn’t. I might suspect that he’s doing so for political reasons rather than legal reasons, but that may be the case in VA as well. It’s all part of the complex tapestry that is the US legal/political system.
Where does this AG get the authority to declare what’s constitutional and whats not? That is a role for the [State and U.S.] supreme courts to decide. That’s part of the separation of powers our form of government is based on.
If this Attorney General is able to not do his job on this issue claiming his belief of unconstitutionality, what’s to stop him or any other AG from refusing to enforce any law due to their belief and not due to a court ruling? What if someone like Wayne Lapierre gets elected as AG of some state. How happy will you be when he stops enforcing any gun law on the books due to his belief they are unconstitutional?