NLC: Attorneys General Panel
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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.
Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. Mr. Stone joined the faculty in 1973, after serving as a law clerk to Supreme Court Justice William J. Brennan, Jr. He later served as Dean of the Law School (1987-1994) and Provost of the University of Chicago (1994-2002).
Stone is the author of many books on constitutional law, including Sex and the Constitution: Sex, Religion and Law from America’s Origins to the Twenty-First Century (2017); Speaking Out: Reflections of Law, Liberty and Justice (2010 & 2016); Top Secret: When Our Government Keeps Us in the Dark (2007), War and Liberty: An American Dilemma (2007), Perilous Times: Free Speech in Wartime (2004), and Eternally Vigilant: Free Speech in the Modern Era(Chicago 2002). He is also an editor of two leading casebooks, Constitutional Law (7th ed. 2013) and The First Amendment (5th ed. 2016). Stone is an editor of The Supreme Court Reviewand chief editor of a twenty-volume series, Inalienable Rights, which is being published by the Oxford University Press.
Stone was appointed by President Obama to serve on the President’s Review Group on Intelligence and Communications Technologies, which evaluated the government’s foreign intelligence surveillance programs in the wake of Edward Snowden’s leaks. He is a Fellow of the American Academy of Arts and Sciences, a member of the America Law Institute, the National Advisory Council of the American Civil Liberties Union, a member of the American Philosophical Society, and a member of the Board of Advisors of the Council for Democracy and Technology. He has served as Chair of the Board of the American Constitution Society and Chair of the Board of the Chicago Children’s Choir.
Stone has also written amicus briefs for constitutional scholars in a number of Supreme Court cases, including Obergefell v. Hodges, Whole Woman’s Heath v. Hellerstadt, Lawrence v. Texas, United States v. Windsor, United States v. Stevens, and Rasul v. Bush. He was also one of the lawyers who represented President Bill Clinton in the Supreme Court in Clinton v. Jones.
Senior Vice President for Legal Studies, Cato Institute
Clark Neily is senior vice president for legal studies at the Cato Institute. His areas of interest include constitutional law, overcriminalization, civil forfeiture, police accountability, and gun rights. Neily is the author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. His writing has appeared in the Wall Street Journal, Forbes, and National Review Online, as well as various law reviews, including the Harvard Journal of Law and Public Policy, George Mason Law Review, Georgetown Journal of Law and Public Policy, NYU Journal of Law and Liberty, and Texas Review of Law and Politics. Neily is a frequent guest speaker and lecturer for the Federalist Society, Institute for Humane Studies, and American Constitution Society.
Before joining Cato in 2017, Neily was a senior attorney and constitutional litigator at the Institute for Justice and director of the Institute’s Center for Judicial Engagement. He is also an adjunct professor at the University of Texas School of Law, where he teaches constitutional litigation and public-interest law.
Neily served as co-counsel in District of Columbia v. Heller, the historic case in which the Supreme Court held for the first time that the Second Amendment protects an individual right to own a gun for self-defense.
Neily began his legal career as a law clerk to Judge Royce Lamberth on the U.S. District Court for the District of Columbia. After that he spent four years in the trial department of the Dallas-based firm Thompson & Knight. Neily received his undergraduate and law degrees from the University of Texas, where he was Chief Articles Editor of the Texas Law Review.