I agree. Sorry – although the hypothetical clearly says, “The President,” the general subject of discussion was AGs and I apparently did some kind of mental edit.
The President is a unique constitutional actor. I agree he has an independent duty to interpret the constitution.
The AG, not so much.
Why not? The context here was the checks and balances of the three branches of government, and it seems to me that just as the federal AG recently announced that the government would not be enforcing federal marijuana laws in states that had legalized it, and presumably did so at the behest of the President, so too the Virginia state AG has echoed the position of the state’s executive branch on the gay marriage ban.
I think some of us are trying to make the case that this is exactly what Mark Herring is doing.
One big difference of course is that while the U.S. attorney general’s authority is entirely derived from the president, the Virginia attorney general—like many other state attorneys general—has authority independently derived from his elective office.
That’s true, and it may be – or may not be – a relevant differentiation. It would be interesting if the duly elected governor was opposed to the position of the duly elected AG, but is that the case here? Or do we simply have a case of the executive branch exercising the same executive authority as has been exercised by many executive branches of federal and state governments and many elected state AGs in the past? This sort of constitutional law is the farthest thing from my expertise, but all I’m saying is that I just don’t see the case against the AG’s judgment.
Why on earth would you want a guy who doesn’t believe in his own case to argue it before a court? Seems to me that forcing a guy who disagrees with his own case to argue it before the court would be far worse a plan than letting someone who does believe in the case to argue it. Why, other than the feeling of power over having an AG do what he doesn’t want to do, purpose does it serve?
And, again, why force a person to violate not only their own determinations of constitutionality and their own moral senses, when there are other options available? It seems to me having someone who clearly doesn’t believe in their own case is not going to serve the purpose of creating a “full and fair hearing on the merits of each question.” If no one else is willing to do so, I suppose I could support it, but it seems completely self defeating to force someone to argue a case they don’t agree with when there are better options elsewhere.
I still would like some clarification about your assertion there is no “direct conflict” short of an appellate ruling on the very issue, that you had made earlier. And a further discussion of this AG/Presidential distinction and how it changes your view, because I am confused by that as well. And if you could iterate a standard upon which these determinations can be made (even if it is "The AG must always defend the law in court no matter what).
That’s, like, so divorced from anything I’ve ever said that the custody battle was mooted because the kids grew up.
Indeed.
Then you’re wrong.
Fuck that authoritarian bullshit. That’s how shit never changes or gets any better.
I do. In fact I think it’s 50 out of 50 considering SCOTUS ruled the definition of marriage is a state issue not a federal one an that is why DOMA is unconstitutional.
No, he is paid to uphold the law, including first and foremost the U.S. Constitution. If he were just a lawyer, he could be hired, not elected.
Huh? Why do you get to draw that line?
If the AG must follow the Constitution, he must do so in all cases, not just extreme cases like that.
Just the opposite. YOU are the authoritarian, not me.
Things get better when you don’t throw out your institutions in favor of people doing whatever they want. When you give leaders the power to do anything, THAT is when you get authoritarianism.
Why not? The AG takes an oath to uphold the U.S. Constitution too.
In fact, it’s not possible to do the job of government leader, any job, without interpreting the Constitution and the laws.
How about answering my question in post 105?
While the majority opinion in Windsor gave a nod to state rights, DOMA was found unconstitutional on the 5th and 14th Amendments, not the Tenth.
I want to add another point to my earlier one – remembering that the context here is that we agree that the President does have discretionary authority, as the head of the executive branch, on the implementation and enforcement of laws.
The situation where an AG is independently elected to the specific office is different than the federal Executive (and it’s also different from the Westminster parliamentary system where cabinet members, though elected MPs, are appointed to cabinet by – and accountable to – the Prime Minister). It seems to me that this independent election, for good or for bad, implies a sharing of executive power, and thus a sharing of the relevant discretionary power, not the absence of it. Which, if one accepts that logic, would give the elected state AG the same sort of discretion over the enforcement of state law that the President has over federal law and many other matters.
Here’s the case: if one official can, by his inaction (or outright opposition) undo the existence of an article of the state constitution, one which was directly approved by a majority of state voters, then the notion of self-governance is eviscerated.
It’s a good thing Mr. Herring can’t do that, then, eh?
Assume slightly different facts that the Norfolk case. It’s only the out of state married couple, the lawsuit is against the registrar (I’m changing the facts just to remove the city’s insurance company - which isn’t really an insurance company, but that’s a different conversation) demanding recognition of an out of state marriage.
The AG (whose office is statutorily obligated to provide the defense of the state official) orders his office not to appear (or to argue against his client). Default judgment for the plaintiff.
How has he not “undone” the Virginia Constitution?
Because that scenario requires the governor to refuse to appoint outside counsel. In any event, a default would not bind any future reviewing court.