Attorneys General Prepare to Defend Controversial Laws

New gun and abortion laws that sailed through Republican-controlled state legislatures this year are about to face scrutiny in a less hospitable arena: the courtroom.

In Arkansas, the American Civil Liberties Union and the Center for Reproductive Rights have sued to halt a new state ban on abortions after 12 weeks (except in cases of rape, incest, or a threat to the mother’s life).  The Center for Reproductive Rights is also fighting a North Dakota law that requires all abortion providers to have admitting privileges at a nearby hospital.  And in Kansas, Republican Gov. Sam Brownback has vowed to defend a state law nullifying federal gun and ammunition restrictions, which U.S. Attorney General Eric Holder described as unconstitutional. (see chart)

Challenging Washington isn’t cheap, and in North Dakota and Kansas the state attorneys general have asked for more money to mount a credible defense of the new laws.

“I think it’s very difficult for voters to understand the ramifications of what we pass because they’re not here,” said Kansas Sen. Laura Kelly, a Democrat who voted for the new gun law.   “But when they do catch on, a lot of them are rightfully outraged that we would set them up for these payments.”

Sherriene Jones-Sontag, a spokeswoman for Brownback, said the legal challenge to that state’s law hasn’t dampened support for it. She said Brownback has received about 500 emails and calls in the last two weeks, and less than 6 percent of them have been critical of his pledge to defend the law in court. 

To Defend or Not to Defend?

In the vast majority of day-to-day cases facing states, attorneys general will defend a new law or agency action without question, said James Tierney, director of the National State Attorneys General Program at Columbia Law School. But for the small group of controversial cases, “there’s a higher rule, especially on a moral issue that the attorney general may have campaigned on,” Tierney said.

For example, California’s Attorney General Kamala Harris declined to defend the citizen initiative Proposition 8, which effectively banned same-sex marriage in California. Harris decided not to defend the law because “it violates the Constitution…the time has come for this right (to marry) to be afforded to every citizen,” Harris said in a statement after the Supreme Court arguments in March.

Similarly, Indiana Attorney General Greg Zoeller declined last year to continue to defend the state’s restrictive immigration law after the Supreme Court struck down most of Arizona’s immigration law, which was very similar.

“I rest easily knowing I made the right decision, to defend the parts that are defensible, to not defend the part that is clearly unconstitutional, to uphold the Constitution and to speak truthfully to the people of Indiana whom I serve.” Zoeller wrote in an op-ed explaining his reasoning.

But declining to defend a law is the most extreme position an attorney general can take. More often, a state’s top lawyer will make the best legal argument possible, even when it isn’t likely to be successful.

“We’ve defended cases where we know we’ll lose,” said Mary Williams, Oregon’s deputy attorney general. “But we feel like we have a duty to defend…and do what we can to make the best arguments.”

Despite the controversy and the cost, the attorneys general in Arkansas, North Dakota and Kansas appear determined to defend their states’ laws in court.  But because that may not always be true, Arkansas Sen. Jason Rapert, a Republican, has proposed an additional new law that would give state legislators standing so that they could defend a new state law in court. The same bill was proposed this year in Montana.

“We want to be prepared if there are times that a state attorney general may make comments during campaigns or during term of office on issues that end up in legislation,” said Rapert, “and we don’t want to wonder about whether there would be a proper defense made for that statute.”