Should AGs Ignore Laws They Don’t Like?

Eric Holder on Monday tossed some live bait to right-wing critics by telling state attorneys general that they don’t have to defend state laws they believe are discriminatory:

Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

While Holder later clarified that AGs should appoint independent counsel to represent the state in such cases, Byron York still finds fault with his argument:

So the full version of Holder’s position on one-man, one-woman marriage laws is: State attorneys general should not defend them, but they should hire private lawyers who will. It was a much more nuanced opinion than what was reported in the headlines. And it left some attorneys general pretty unhappy. They have sworn to uphold the laws and constitutions of their states, and there has been no Supreme Court decision invalidating those state laws and constitutions. So they should just make a judgment on their own not to defend?

“It’s troubling to have the attorney general advise you that you can ignore your oath to uphold and defend the constitution and laws of your state,” said Luther Strange, the attorney general of Alabama, who was at the meeting. “We certainly don’t advise him how to enforce federal laws, how to do his duty — so that was a little unusual, to say the least.”

Morrissey is also troubled:

It’s not necessarily unusual to bring in outside counsel, certainly for corporations (who don’t usually keep litigators on salary), and occasionally for public-sector agencies. It might be a little more unusual to see that in an AG office, which presumably has a plethora of capable litigators available for assignment. However, the retention of outside counsel for any legal effort usually comes in response to a gap in skills or specialties, not in a primary area such as defense of existing statutes for an AG. That’s a key part of the job, after all — what the clients (voters) hired the AG to do. Forcing a client to pay for additional counsel just because an attorney doesn’t particularly like the issue should raise significant ethical questions about lawyers who make that kind of choice. The ethical choice would be to resign from the case, or in this context, to resign from the office so that the client can hire an attorney that wants the job.