N.M. Attorney General Refuses to Defend N.M. Governor's Temporary Ban on Gun Carry in Albuquerque Area

The Truth About Guns (Dan Zimmerman) has what appears to be an accurate copy of the letter from the A.G. (who is of the same party as the Governor, though is separately elected). An excerpt:

The whole letter is worth reading; some of it also discusses the question whether the Governor has the statutory authority to issue the order, even apart from the right to bear arms objection.

For more on the governor's order, see here.

Comments

[DaveM]

The first objection raised is that the order uses a law meant to combat the spread of communicable diseases to forbid self defense with a firearm. This distortion of the law’s meaning is completely inappropriate. We saw this happen all the time during covid, too. Laws meant to quarantine infectious people were applied to everyone, regardless of infection, a clear distortion, I thought. And, it turned out, an exceedingly damaging one, too.

As much as we normies kvetch about lawyers arguing endlessly over words, the precise meanings of words really does matter.

[Commenter_XY]

Why not test the law: walk around open carry and be arrested? I am not talking about brandishing a weapon or doing anything remotely resembling anything threatening; but just open carry as you normally would. Then litigate it.

Maybe people from Bernalillo county already are just ignoring the law.

[Mr. Bumble]

It has reportedly been done and no one was cited or arrested.

[Commenter_XY]

Isn't that the real danger, though? Meaning...

Citizens just ignoring the laws (however stupid and this one is incredibly stupid), and the government also ignoring the laws it promulgates. What other laws might citizens just choose to ignore, and the government refuses to enforce. It leads to contempt of civil authority, eventually. Isn't that the true danger?

[Mr. Bumble]

It is not a law. It is an illegal executive order with no basis in the law.

[Social Justice is neither]

Isn't that exactly what current sanctuary cities, local drug laws and theft and other law deprioritization to non-existence are though? Directives to ignore the laws rather than formally removing or changing them.

[MatthewSlyfield]

Because both the APD police chief and the Sheriff of the relevant county have publicly declared that their departments will not enforce an order that they see as unconstitutional.

If the NM gov wants the order enforced, she will have to send in state police to do it.
AFIK, NM state police officials have not yet weighed in on whether they will enforce the order or not.

[Jerry B.]

They realize that "I vas only followink orders" is no longer a good defense against illegal orders.

[DRM]

This governor signed the law that eliminated qualified immunity in New Mexico state court for rights violations. Any member of the state police who might consider enforcing this order is well aware that they'll be liable in court for something the state AG has just announced is unconstitutional.

[Krayt]

Why should they have to risk jail or even a fine? That you may have been cowed down against going out with a gun should be sufficient to sue over it.

Also, Trump fans: more emergency power abuse coming home to roost, as prognosticated by various Mysterios the Magnificent.

Oh, and others going back thousands of years, to at least Ancient Greece.

Oh, and Star Wars, where Lucas modeled the political intrigue on emergency power abuse, the biggest lesson to learn from History.

[Brett Bellmore]

Trump's emergency exercise for the wall, anyway, had a statutory basis in the damnable National Emergency Act. Which has been abused by every President since they enacted it.

This EO, OTOH, is just totally out there.

And, maybe she shouldn't have signed a law eliminating qualified immunity in her state, if she was going to order people to violate clear and unambiguous constitutional rights?

[SenatorMoobs]

More precisely, the NM Civil Rights Act did not eliminate QI under state law, as no such doctrine existed, and of course it couldn’t eliminate it as a matter of federal law. What it did do was expand the scope of liability for constitutional torts and raise damages caps. In doing so, it also stated that courts are prohibited from developing a state QI doctrine in response.

[Brett Bellmore]

Fair enough, it's not like QI was actually enacted in the first place, it's an invention of the courts. At least at the federal level it is, and I expect in many states, too.

[TW]

First you'd have to find a cop willing to risk a lawsuit (now that New Mexico has done away with qualified immunity) by arresting someone for violating the governor's executive order after the attorney general just said that it's probably unconstitutional.

[Kazinski]

Its in court noon New Mexico time today.

The government can't forbid exercise of constitutional rights chilling their exercise and then not have it challenged until someone is actually arrested.

[Davy C]

In federal court there might be a standing problem if all the law enforcement people say they won't enforce it, though - there has to at least be a credible threat of prosecution. Don't know if NM courts have the same problem.

[Mr. Bumble]

Apparently the idea of an Imperial Presidency has filtered down to Imperial Governors and as seen in Covid restrictions to even lower level officials.

[defaultdotxbe]

“The regional governors now have direct control over their territories. Fear will keep the local systems in line.” -Grand Moff Tarkin

[Ed Grinberg]

You know, the really scary thing is that this "regional governor," who thinks she has unlimited power to do whatever she wants, wasn't appointed by some evil emperor -- she was elected by the people of New Mexico (twice!). Were they aware of her authoritarian tendencies? Will they reelect her after this? The really scary answer might be -- yes.

[Mr. Bumble]

Term limited.

[Sarcastr0]

Must...strain...to...stay...angry!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

That's a strained comment!

[Don Nico]

Don't strain. Take a laxative

[MaddogEngineer]

Right, it's only worth getting angry when the other guys do something bad.

[Noscitur a sociis]

Jesus dude. You’re allowed to just say the something is bad, even if it’s someone on your side doing it!

[Sarcastr0]

It absolutely is bad.

It's also a stunt, an outlier, and not going anywhere.

[Life of Brian]

Everything is a one-off outlier with you -- except for the things you want to see as a pattern.

And this is anything but an outlier: she learned this well-established pattern from the COVID era: scream "EMERGENCY!!!1!" and grab power, then play chicken with the courts and the will of the people. Only the subject matter has changed.

[Sarcastr0]

Yeah, people here love to pretend anecdotes are representative of blanket truths without doing the work.

This *clearly* an outlier, which is why it made headlines.
Will you claim otherwise, or are you going to just grumble about Covid and pretend that's an argument?

It's bad, but still being furious at this point means you want to be.

[Life of Brian]

This *clearly* an outlier, which is why it made headlines.

Ah, so it would have generated no headlines had there already been a number just like it -- sort of like emergency COVID orders stopped making the news after the first dozen or so? Just stop digging.

It’s bad, but still being furious at this point means you want to be.

Pointing out that it's just the next logical step in the learned behavior of tyranny-via-pretend-emergency makes me "furious"? Such a lazy, wanna-be mind reader.

[Sarcastr0]

Yeah, nothing like Covid orders. For, among other reasons, as noted in the OP *this didn't end up going anywhere*.

Crying about the 'next logical step in the learned behavior of tyranny-via-pretend-emergency' doesn't make you furious, it makes you approaching sovereign citizens levels of ridiculous.

[Kazinski]

Yeah?

Tell that to Lujan.

[Sarcastr0]

Politician does an irresponsible stunt. Stunt goes nowhere.

Yeah, this was shitty. Be pissed at him for a day.

But as I expected there are a lot who want to stay mad.

The parallels to banning flag burning is a good one.

[zztop8970]

Michelle Lujan Grisham is a woman.
Find a biologist who'll explain it to you,

[MaddogEngineer]

But our democracy is under attack!!!

[Frank Drackman]

She really wants to reduce crime suspend the right to trial by jury and allow the Police to conduct summary trials/executions.

[ChrisC]

This is Dem policy making on almost any subject you could name -
"It is hard to imagine how Lujan Grisham could have made a worse case. In the space of a single day, she confessed that the order was predicated upon nothing other than her own desire, admitted to violating her oath, anticipated a legal challenge that she seemed sure would prevail, took square aim at the concept of legal rights per se, and, to top it all off, conceded that her idea would do nothing whatsoever to help the ersatz “emergency” she had declared.”

[Sarcastr0]

Reading The Corner for truth is no way to go through life.

[Life of Brian]

So telling you jump right to ad hom -- as if it wasn't clear enough on its face, I can now take to the bank that everything in the quote was utterly true.

[Sarcastr0]

Ad hominem is a fallacious way to attack *arguments.*

It is not about credibility determinations about factual statements.

The Corner is not where you should go for facts.

[Life of Brian]

Throw out whatever angel-pinhead confetti you need to try to distract while you squirm away, but at the end of the day you're saying you can disregard the substance of what was said because of its source.

[Sarcastr0]

Fallacies are about arguments, not about facts.

That's not some technicality, it is fundamental.

Credibility determinations are a legit thing to do, and not fallacious.

[Life of Brian]

And you call me pedantic -- what a joke.

Games like this are just a lazy crutch for you to pretend you don't have to engage with the substance of what was said. Indeed, you've spat out four rounds of responses and haven't said a single word about the actual quoted topic.

As I said from the beginning and you've now repeatedly confirmed, you have no actual counter to the actual subject matter and are just flailing around trying to distract from that.

[Sarcastr0]

You are not this stupid, quit it.

I believe that the characterization of the facts that was taken without citation from The Corner is false. She did not 'confess[] that the order was predicated upon nothing other than her own desire' nor did she 'admit[] to violating her oath.'

That is not argument, that is not opinion, that is just the Corner telling it's audience some alternative facts to keep them riled.

If you read the Corner, Google to check what actually happened; they are not to be trusted.

[Life of Brian]

Cute -- all you did was once again question the rendition of the facts as stated by that source, while curiously not providing a source you feel reports the facts correctly and noting the differences in that rendition relevant to your claims.

IOW, you're just talking out your ass. As usual.

[Sarcastr0]

Google it, you ninny. I did, it's not hard.

[Life of Brian]

Giving you the benefit of the doubt, that just makes it even more telling that you opted not for a quick cut and paste of the specific language that spoke to you, and the source of that language.

"Go fish and guess what I'm thinking" is not a clever debate technique, no matter what you've been told in whatever fart-sniffing circles you may run in.

[Kazinski]

Are you saying conservatives shouldn't read Never Trump conservative media?

I there are many people who do say that, but I always thought getting different perspectives is important.

[Sarcastr0]

Reading for truth implies you don't check other sources.

I read The Corner time and again. Pretty easy to Google the facts they present and find they're full of shit more often than not. Helps get me ahead of those on here who are just waiting to post their latest in the open thread like their own argument.

You should do the same in reverse.

[Michael P]

He's trying (again) to poison the well. He doesn't have actual arguments, only fallacies.

[Michael P]

Perhaps the person(s) who claimed in an earlier thread on this that the state AG was backing the governor should step up and apologize for posting disinformation.

[mydisplayname]

Here we see one reason the choice was made long ago to elect, and not simply appoint, many seemingly innocuous elements of government: without such checks, executive errors might go unenforced. Diogenes of Sinope, quoted during the ABSCAM matter (way back when Joe Biden spoke from the Senate floor), had the right idea: virtue is revealed by action and sometimes philosophical stunts are necessary to detect the one honest man within the flock.

[On an unrelated note, was it Diogenes, the son of the mint-master of Sinope, alone who debased the Sinopian currency, did his father do it, or did they do it together? Interesting how history repeats itself.]

[Scooter]

The Governor appears to be in a very awkward situation when her own AG won't defend her proposed actions.

[Brett Bellmore]

I don't think she meant for this order to be enforced. She's term limited out, I think she's trying to rally 'progressive' support for a Senate run in 2026.

So she's going to do a bunch of high profile stupid things that will stoke progressive outrage as they're predictably struck down.

[Scooter]

It's a sad state of affairs when blatantly illegal/unconstitutional proposals serve to gin up support for a run for political office.

[Rev. Arthur L. Kirkland]

It’s a sad state of affairs when blatantly illegal/unconstitutional proposals serve to gin up support for a run for political office.

Is that a proposed subheading for a book entitled "The Trump Years?"

[Krayt]

'member multiple attempts to pass laws against flag burning?

[Michael P]

Some people would think that burning a flag is an action, not speech. Please won't you think of all the CO2 that it will emit?

[Randal]

It’s a sad state of affairs when blatantly illegal/unconstitutional proposals serve to gin up support for a run for political office.

Couldn't agree more!

Now tell it to Trump, DeSantis, et al.

Notice that this stunt also gave the elected, Democratic AG the opportunity to grandstand as a defender-of-freedom type... of Democrat. I keep telling you guys that we exist but you never believe me. The Republicans are now so much just the party of crazy (and criminality) that the Democrats can start poaching their talking points. All relevant US policy discussion is within the Democratic party now.

[Life of Brian]

All relevant US policy discussion is within the Democratic party now.

Wow, super-clever self-fulfilling construct, though I fear "relevant" may not hold up under the strain.

[Randal]

Thank you! I'm quite proud of it myself.

[jb]

We're living in a world in which criminal indictments apparently make voters like you more. So yes it's sad that many people have retreated into their partisan filter bubbles, but this is hardly the most extreme example.

[Kazinski]

Well I think she's guaranteed herself a solid 25% of the electorate backing her. That's enough to win a lot of primaries, but that other 75% some of whom used to be reachable might now be lost to her.

[Currentsitguy]

Considering NM has eliminated QI for charges of Civil Rights violations, I doubt if any cop, sherriff, or DA will touch this with a 10 foot pole. It's a good way to go bankrupt defending yourself.

[Scooter]

Somewhat mixed emotions about QI. As currently applied, it's overbroad and IMO dangerous. I can, however, see a narrow slice of actions committing in a crisis situation that could be covered.

[Currentsitguy]

I wholeheartedly agree. There's a huge difference between a split second decision in a crisis situation and blanket impunity for any egregious violation.

[Brett Bellmore]

I would think you could forget QI, and just let the jury decide if the action in a crisis had been appropriate.

That's the system people who DON'T work for the government have to live with, what's sauce for the goose...

[Currentsitguy]

Generally agree, although I could see individuals bombarded with frivolous lawsuits designed to paralyze departments, or obvious criminals trying to derail their prosecution.

Not sure what the answer to that is, although QI as currently interpreted and implemented isn't it.

[Brett Bellmore]

Loser pays would be my preferred solution.

Well, loser's lawyer pays, anyway; After all, isn't the lawyer supposed to be the one who knows if it's a good case, not the client?

[Randal]

loser’s lawyer pays

That's one way to make sure that undesirable people can't get decent representation!

[Brett Bellmore]

Huh? No, it's a way to make sure that people with bad cases can't get representation. If an undesirable person has a solid case, why wouldn't it get taken?

[Life of Brian]

Loser pays would be my preferred solution.

That might cut off a slice around the edges, but still wouldn't prevent waves of generally frivolous suits financed by third parties like anti-police activist groups.

It's a tough problem -- my sense is that the risk of organized litigation like this (and the general societal animosity toward police, for that matter) was much lower back when QI was first developed, and now that both factors are materially increasing it's taken on much more of a front-and-center role than anyone ever imagined. Some combination of courts and legislation generally sorts out legal band-aids like this, but that often happens over decades-long time frames.

[Rossami]

I think you underestimate how much 'loser pays' disincents even well-funded activist groups. Those "deep pockets" get rapidly less deep when you have to pay the other guy's legal fees. Jurisdictions around the world that have functioning "loser pays" systems have considerably less frivolous litigation even when they have the same activist groups as we do.

And contrary to Randal's claim above, 'loser pays' does not significantly inhibit the poor in jurisdictions where that's the rule from getting decent representation.

[Life of Brian]

I think you underestimate how much ‘loser pays’ disincents even well-funded activist groups. Those “deep pockets” get rapidly less deep when you have to pay the other guy’s legal fees.

Depends on the size of the spigot refilling their coffers, doesn't it? The ultimate funders may be fine with a leaky bucket model as long as the net effect is to maintain some level of chilling effect on police behavior (and keep them tied up in court instead of on the streets). If there's data out there on this, I'd love to look at it.

Jurisdictions around the world that have functioning “loser pays” systems have considerably less frivolous litigation even when they have the same activist groups as we do.

Again, I'd love to see the data. I'm particularly curious about the degree of intersection between countries with "loser pays" and a police system that hasn't already... sorry, policed itself into pacifism/irrelevancy where the activists don't need to rail on them as they do here.

[Randal]

And contrary to Randal’s claim above, ‘loser pays’ does not significantly inhibit the poor in jurisdictions where that’s the rule from getting decent representation.

You haven't been reading closely enough. Brett suggested loser's lawyer pays. That's what I was responding to.

[VinniUSMC]

Bravo to the NM A.G. Full stop.

[Longtobefree]

I suspect the reality is that his is an elected office, not that he really gives a damn about legal or not when considering democrat policy.

[Mr. Bumble]

Yeah, maybe but maybe he is smart enough to realize that the governors position is indefensible.

[Randal]

NM is a blue state. Why do you think it matters for his election chances if he stands up for the Second Amendment?

Could it be that your caricature of Democrats and progressives is completely ridiculous, and we're not all baby-rapers?

[CindyF]

I appears the Governor's mouth wrote a check her ass can't cash!

The AG will not defend her and the Sheriffs will not cooperate with her illegal and unconstitutional order. The Governor is left standing all alone. Let her bell the cat and lets see how that works out for her.

[Drewski]

You understand that they'll just appoint an amicus to defend it. It actually is important for challenged laws to receive a robust defense, even if the outcome is pretty obvious.

[Rev. Arthur L. Kirkland]

The attorney general's position seems reasonable.

Better Americans will and should deal with gun nuttery and gun nuts in better ways.

[Jerry B.]

So, let's hear your plan.

Oh. You said "better" Americans.

Never mind.

[Life of Brian]

Better Americans will and should deal with gun nuttery and gun nuts in better ways.

It's cute how Artie pretends that he wouldn't have characterized Gov. Grisham as one of the supposedly "better Americans" right up through last week. How quickly the hallowed ones get thrown to the wolves to try to preserve one's sagging worldview.

[Rev. Arthur L. Kirkland]

She made a mistake.

I doubt she has become an antisocial, bigoted, disaffected stain and drain on our society.

[Bob from Ohio]

Refusals by state AGs in recent years to not defend laws they disagree with is a bad trend.

Extending these refusals to state executive actions is only slightly less bad.

AG is supposed to defend the state, its up to judge(s) to decided if the state is wrong.

[WuzYoungOnceToo]

This isn't a case of an AG refusing to defend something he "disagrees with". It's a case of an AG saying he can't defend something that is obviously indefensible from a legal standpoint. AG wouldn't be a separately elected position if the intention was for the office to be an employee of and rubber stamp for the Governor.

[Bob from Ohio]

He's not being a "rubber stamp", he is doing his duty, to defend lawsuits against the state and other state executive officers.

"obviously indefensible "

Very little is indefensible. Dodge City and Tombstone and other "Wild West" towns [maybe some in New Mexico] had bans on carrying weapons within city limits. Under Bruen, that history has to be considered. Probably not enough to uphold it but its a valid argument.

There, a defense.

[Randal]

There is always a defense, but it has to be one that the AG is willing to put forward in good faith and still be strong enough to be worth doing.

I agree that the trend of AGs failing to defend laws is a dangerous one in that it could be abused, but it's not necessarily bad as long as it's not being abused.

I think there may be the rare case in which the AG, acting in good faith, finds that the best defense he can muster is so likely inadequate that the state may be better served by an amicus.

[WuzYoungOnceToo]

Very little is indefensible. Dodge City and Tombstone and other “Wild West” towns [maybe some in New Mexico] had bans on carrying weapons within city limits. Under Bruen, that history has to be considered. Probably not enough to uphold it but its a valid argument.

"Indefensible" doesn't mean nobody can possibly concoct some sort of weak argument as a "defense". It means not justifiable or having a reasonable chance of being successfully defended. For instance, calling a particular location on a battleground an "indefensible position" doesn't mean that some sort of defense against enemy attack can't be attempted. It just means that any such attempt is likely doomed to failure.

Simply saying "there's always a defense" renders the term "indefensible" meaningless.

[Bob from Ohio]

"Simply saying “there’s always a defense” renders the term “indefensible” meaningless."

In the law, the term is just about "meaningless".

Bruen requires an historical analysis. History says that such orders were used in the past to limit gun violence. Its a colorable argument. Just make it and let the courts decide.

[WuzYoungOnceToo]

“Simply saying “there’s always a defense” renders the term “indefensible” meaningless.”

In the law, the term is just about “meaningless”.

Not in the actual practice of the law, it isn't.

Bruen requires an historical analysis. History says that such orders were used in the past to limit gun violence. Its a colorable argument. Just make it and let the courts decide.

History before Heller and the subsequent case law that firmly established the unconstitutionality of such actions. People legally kept slaves, too. Does that call into any question the legality of that practice today?

[Randal]

That's a dumb argument. The 13th Amendment changed the legality of slavery. There's no such thing in the case of gun rights.

[WuzYoungOnceToo]

That’s a dumb argument. The 13th Amendment changed the legality of slavery. There’s no such thing in the case of gun rights.

As long as you've been flapping your virtual gums on a constitutional law blog and you still don't understand the concept of case law? Speaking of dumb....

[Randal]

Uh, the case law, Heller and Bruen, say that you should look to history to determine the scope of Second Amendment rights. As Bob said.

So what are you even talking about? You're just making up weird shit.

[WuzYoungOnceToo]

Uh...there's more case law than just Heller and Bruen. And neither say that you should look to history to the exclusion of more recently established superior law...like SCOTUS precedent establishing a right that the historical example that Bob cited would have violated today.

You're just full of weird shit.

[Randal]

There you go, you found a decent (if poorly articulated) argument. Go with that, not your dumb slavery one.

[WuzYoungOnceToo]

Also, you seem to be overlooking the fact that he also has a (greater, IMHO) duty to defend the federal and NM constitutions and the rights they protect.

[KenveeB]

Bob, attorneys have an ethical obligation not to raise frivolous arguments. Your ability to pick something randomly out of thin air without any factual or legal basis beyond your own supposition is not the same thing.

[Rev. Arthur L. Kirkland]

Very little is indefensible. Dodge City and Tombstone and other “Wild West” towns [maybe some in New Mexico] had bans on carrying weapons within city limits.

The Volokh Conspiracy is where I learned that John Wayne, who collected guns at the saloon doorway for safekeeping until the outsiders and troublemakers slept it off or reached the town limits, was not an American hero but instead a godless, commie gun-grabber.

[CindyF]

"Refusals by state AGs in recent years to not defend laws they disagree with is a bad trend."

But as you noted, this is not a law passed by the legislature. And no AG should be required to try to defend such an obvious unconstitutional law. He is not an employee of the Governor. He represents the state.

[Kazinski]

No, I think a governor's executive actions which are clearly illegal from the gitgo are on the governor to defend.

The only defense I would condone by the AG of the governor's action is an insanity plea.

[John F. Carr]

The TRO hearing was scheduled for 1 PM today, presumably Mountain Daylight Time which is over an hour ago as I type this.

[John F. Carr]

The cases are assigned to Judge David H. Urias. (https://www.courtlistener.com/?q=&type=r&order_by=dateFiled%20desc&filed_after=09%2F06%2F2023&assigned_to=%22David%20H.%20Urias%22) The docket shows no attorney representing the defendant, although the governor is a lawyer and presumably could be admitted pro hac vice if she is not a member of the federal bar.

[Estragon]

Doesn’t Eastman live in ABQ? Can we get his take on this?

[Rev. Arthur L. Kirkland]

Yeah, I'm sure Eastman, Clark, and Kozinski are working on lots of joint posts for the Volokh Conspiracy.

[DaveM]

That’s no excuse for distorting and misapplying the code that was written for an entirely different purpose. Just making up rules on the fly is how you end up with a mess (and how you make horrible mistakes, as we did in COVID).

[Currentsitguy]

"Just to be sure" doesn't strike me as particularly sound footing to twist the law into a pretzel.

[Ed Grinberg]

You're, of course, correct that Frank's (facetious?) suggestion is highly authoritarian. What do you think of Gov. Lujan-Grisham's "emergency order"? Anything authoritarian-ish about it? Anything at all?

[Frank Drackman]

Not kind or gentle, like if I was to say that “Gay” stands for “Got Aids Yet?” and you don’t even want to start me with “AIDS” lets see, “Anally Injected Death Sentence” “Another Infected (redacted) (redacted)” try it! it’s fun! (making up funny phrases for "AIDS" not getting it)

Frank “I’ll have the Emmet Till take out box”

[Scooter]

True. One could use the same justification in support of "Stop and Frisk" for illegal weapons. "I'm not certain"

[MaddogEngineer]

Some of us have thought the same thing about all “emergency” executive orders. DACA, the wall, wanting to repeal “birthright” citizenship, student loan relief, whatever, the rule of law shouldn’t be a partisan issue, but it obviously is.

I’m not in a contest here about which is worse, but I will say that it’s particularly corrosive the rule of law when an executive publicly claims they don’t have the authority to act on their own, then does so anyway because they can’t get the legislation they want to authorize it.

The NM governor’s offense here is her indifference in the original instance as to whether she has this authority, and declaring she doesn’t really care…because it’s an EMERGENCY dammit!

[Mr. Bumble]

...and justifying it with the comment that "oaths" aren't absolute; they're really pinky oaths that can be broken at will.

[Drewski]

It's interesting that you bring up DACA, which was not an emergency order. It directed federal officers not to enforce or prosecute certain immigration laws in certain circumstances. That makes it more akin to the AG's letter, directing state officers not to enforce or prosecute, than to the Governor's order.

[MatthewSlyfield]

Worse, she termed her oath of office a right, not an obligation/limit.

[Life of Brian]

That makes it more akin to the AG’s letter, directing state officers not to enforce or prosecute, than to the Governor’s order.

Strictly in terms of polarity, sure. But the rationale behind selective enforcement of immigration laws under DACA boiled down to "just 'cause" rather than impingement of constitutional rights as the AG called out here. That's a... bit of a difference.

[Rossami]

Minor quibble - the AG's letter does not "direct[] state officers not to enforce or prosecute". The AG's letter merely says that he (and his office) will not defend the law when it is challenged.

[CountmontyC]

Does Obama's DACA order claim that the immigration laws are unconstitutional somehow? What the AG is saying that they believe that the governor's order is blatantly unconstitutional and he won't defend the order. As far as I recall Obama's reasoning for DACA is not that the immigration laws are unconstitutional but are merely something he believes are the wrong policy.

[MaddogEngineer]

I guess I brought up DACA because it was an example where the executive said he didn't have the authority to do something, but then did it anyway.

The "emergency" was not the order, but the situation the minors faced. He could not wait any longer for Congress to act, so he did.

Variations on a lawlessness theme.

(The problem with DACA is not the blanket enforcement amnesty on a class of persons. It's the purported authority to issue work permits, a positive action in violation of existing law.)

[MaddogEngineer]

But also DACA is nothing at all like the NM AG actions here. No one claimed existing immigration law as currently enforced was unconstitutional. DACA itself was the illegal act, as I just described in another post.

Here the NM AG is responding to an unconstitutional act the correct way, declaring he will not enforce an illegal order. If DACA situation were like that, the U.S. solicitor general would not have defended it in court. Unfortunately we didn’t get a resolution of the underlying issue by SCOTUS, as the case has turned on the APA implementation of regulations to date, not the merits.