The Volokh Conspiracy
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Last Thursday, Judge William H. Pryor, Jr. of the U.S. Court of Appeals for the Eleventh Circuit delivered the annual Sumner Canary Lecture at the Case Western Reserve University School of Law. His topic: How the Separation of Powers Informs the Executive Duty to Defend the Law.
Drawing on Judge Frank Easterbrook's 1990 Canary lecture on "Presidential Review," and his own experience as the Attorney General of Alabama, Judge Pryor argued that executive branch officials, including the U.S. Attorney General and state attorneys general, are not always obligated to defend the constitutionality of the law. Specifically, Judge Pryor maintained that if an attorney general concludes, in good faith, that a given law is unconstitutional, he or she is under no obligation to defend it in court.
Criticisms of state AGs for refusing to defend objectionable state laws are misplaced, Judge Pryor maintained, insofar as such criticisms are premised on the idea of an unyielding obligation to defend all relevant laws. Any criticisms of these officials, Judge Pryor suggested, should focus on the substance of their position—whether they correctly concluded that the law at issue is unconstitutional—and not on the decision not to defend it. After all, both the U.S. AG and state AGs take an oath to uphold the Constitution. This means AGs should defend silly-but-constitutional laws, but refuse to defend defensible-but-unconstitutional ones. Defending a law that is unconstitutional would conflict with that oath.
Judge Pryor's lecture, like Judge Easterbrook's from 1990, will be published in the Case Western Reserve Law Review, although not until next year. In the meantime, you can view a video of his remarks here.