What should the Attorney General do when he agrees a law is unconstitutional?

March 17th, 2014

Marty Lederman has an excellent post on the strategies of the United States Department of Justice when the government agrees that a law is unconstitutional–ranging from Attorney General Holder’s decision to enforce a law, appeal it, but not defend it in Court, to Solicitor General Bork’s decision to file a brief that opposes the Attorney General’s brief. Read it. Here is the intro:

When the constitutionality of a statute is challenged in court, and the attorney general – the state’s chief litigating officer – agrees that the statute is unconstitutional, what should (or can, or must) he do?

In the usual case, the attorney general defers to the presumed view of the legislature and the chief executive who signed the legislation, and defends the law without mentioning any constitutional doubts.  When the chief executive himself weighs in, however, and agrees that the law is unconstitutional, the practice is typically different.  Sometimes the executive stops enforcing the statute, especially in cases where a constitutional defense is untenable.  Increasingly, however, the federal executive branch does what President Obama and Attorney General Holder decided to do in 2011 regarding Section 3 of the Defense of Marriage Act – namely, to cease defending, or even to argue against, the constitutionality of the law, but to continue to enforce it and take the necessary steps, including appeal, to ensure that the Supreme Court has the final word on the constitutional question.  In the wake of the Court’s landmark decision in United States v. Windsor last Term, several state attorneys general have adopted such an “enforce-and-appeal-but-don’t-defend” posture in litigation challenging the constitutionality of state laws limiting marriage to opposite-sex couples.

Other strategies are less common.  There is at least one case in which the acting U.S. solicitor general (John Roberts) attacked the constitutionality of federal statutes before the Supreme Court even though the President had recently signed the laws and had not publicly questioned their constitutionality.  In still other cases, as I explained in a SCOTUSblog post last year, the executive might enforce and not defend at the outset, but then decline to appeal a lower-court ruling that the statute is unconstitutional and cease enforcement – which is what the governor and attorney general of California did in theHollingsworth v. Perry litigation.  And in very rare cases – I only know of one example in the Supreme Court – the Department of Justice might defend the constitutionality of a statute even after the chief executive has publicly announced his view that it is unconstitutional.

Even less well known is yet another strategy, which was first employed by then-Solicitor General Robert Bork in Buckley v. Valeo in 1975.  Bork and Attorney General Edward Levi filed two briefs inBuckley, on opposite sides of the First Amendment questions raised in that case.  As far as I know, no one has emulated the Bork dual briefing in the four decades since Buckley . . . until now, in a remarkable recent filing by Ohio Attorney General Michael DeWine in Susan B. Anthony List v. Driehaus.