State Officials Balk At Defending Laws They Deem Unconstitutional
Professor Michael McConnell weighs in on whether state officials should be required to defend laws they view as unconstitutional, citing his own experience working in the Solicitor General's office, in this Washington Post article by Juliet Eilperin.
Once state legislation is passed, it’s usually up to the governor and attorney general to see that the law is implemented.
But in a number of high-profile cases around the country, top state officials are balking at defending laws on gay marriage, immigration and other socially divisive issues — saying the statutes are unconstitutional and should not be enforced.
Stanford University Law School professor Michael McConnell, who directs the school's Constitutional Law Center, said the only reason an attorney general should opt out of a case is if it conflicts with the executive branch's authority or if there's no reasonable argument that can be made for the law.
When McConnell served in the solicitor general’s office in the Reagan administration, he said, he defended a Labor Department minimum-wage rule he disagreed with personally in arguments before the Supreme Court. "I thought it was unconstitutional, but we prevailed nine to nothing," he said.