Among the most consequential decisions a state Attorney General can make is whether to defend a particular statute in court. That was the subject of a fascinating and lively discussion this morning between Nevada AG Adam Laxalt and former Alabama AG (and current 11th Circuit judge) William Pryor.
One reason why an AG’s decision whether to defend a statute is so consequential is that it may well be the only point at which anyone seriously considers whether the law is constitutional. Yes, legislators are supposed to consider the constitutionality of the bills they propose and vote on, but savvy observers know that rarely happens. And since most laws are subject merely to rational basis review—aka the “rationalize-a-basis test”—when challenged in court, the judiciary rarely plays any meaningful role in ensuring the law’s actual constitutionality either.
So it was both refreshing and encouraging to hear Judge Pryor emphasize the AG’s independent duty to seriously consider the constitutionality of a law before deciding whether to defend it in court. Reasonable people can and do disagree about how much discretion AGs have in this regard and to whom or what they are ultimately responsible: the governor, the people, or the Constitution. But given the proliferation of freedom-restricting laws and the lack of care with which they are all too often enacted, the importance of ensuring that executive branch officials take seriously their own duty to uphold the state and federal constitutions cannot be overstated. This morning’s conversation between General Laxalt and Judge Pryor wonderfully underscored and illuminated that point.
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Clark Neily is a Senior Attorney at the Institute for Justice.