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Why Roy Cooper need not always defend the state in court

Roy Cooper 3The issue of whether attorneys general (and, in particular, North Carolina A.G. Roy Cooper – pictured at left) must always defend the state when its laws are challenged in court is not a new one. In fact, former N.C. Policy Watch Courts and Law Reporter Sharon McCloskey delved in to the issue in some depth back in 2013 when the General Assembly first started positioning itself to intervene in court challenges on which Cooper might decline to take action. This is from her article: “Roy Cooper v. the General Assembly: Who defends the state?”:

“With a rising number of divisive laws being challenged in courts across the country — including those addressing same-sex marriage, immigration and voting rights – some attorneys general are refusing to defend their states, agreeing that such laws are unconstitutional.

Pennsylvania Attorney General Kathleen Kane announced in July that she wouldn’t defend that state’s same sex marriage ban in a pending federal lawsuit.

Illinois’s Lisa Madigan did the same last June, around the same time that Indiana Attorney General Greg Zoeller announced that he’d no longer defend portions of that state’s immigration law, calling them unconstitutional.”

Since that time, of course, Cooper has made headlines for refusing to defend the state’s LGBT discrimination law, HB2, and in recent days, the state’s voter suppression law, which the Fourth Circuit Court of Appeals struck down last week. But, as McCloskey’s story noted, not only is Cooper’s stance increasingly common amongst state attorneys general, it’s perfectly logical and defensible:

“The division of labor in North Carolina is clear. The General Assembly makes the laws, and the governor, through the elected attorney general, enforces those laws.

That’s done most visibly by the attorney general appearing in court on behalf of the state, whether to defend a law being challenged or to bring violators of state law to justice.

But the attorney general is, above all else, obliged to uphold the constitution, [former Maine Attorney General James] Tierney said, and to that end should scrutinize – and possibly not defend — laws that might be popular yet flawed.

‘The simple truth is that attorney general refusal to defend happens all the time,’ Tierney said in an earlier Washington Post article. ‘Legislatures are comprised in most states by non-lawyers trying to do the right thing, but they do not understand the complexity of constitutional limits. They are advised, but often plunge ahead — both liberals and conservatives — and make constitutional mistakes. It then falls to the attorney general to clean this mess up.’”

And, if you think about it for a minute, this makes obvious sense. If Cooper didn’t have such a right, he could be forced to defend a law that, say, purported to “nullify” a federal law or that legalized some other obvious form of unconstitutional discrimination. Given the current make-up of the General Assembly, the possibilities for extreme, reactionary and unconstitutional laws are almost endless.

At some point, Cooper must live up to his oath to defend the Constitution of the United States and his ethical obligation as an attorney not to make frivolous or baseless arguments. By declining to take action to defend HB2 or the “monster voting law” he is quite arguably doing just that — that is to say, his duty.

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