There’s one bit of solace for Attorney General Roy Cooper, who is taking flak for refusing to defend House Bill 2 in court: He’s not alone. Partisan standoffs between attorneys general and legislatures or governors have been increasing across the country.
Since Republicans took over the North Carolina legislature in 2011, they have clashed repeatedly with Cooper over whether he must defend North Carolina against all lawsuits or whether he has the discretion to refuse. Now that Democrat Cooper is running against Republican Gov. Pat McCrory and HB2 is the latest political wedge, the clash has grown louder.
Cooper has said he would not defend the state against a lawsuit challenging HB2, the law rolling back LGBT discrimination protections and pre-empting a Charlotte ordinance that would have allowed transgender people to use the bathroom of the gender with which they identify. President Barack Obama recently ordered public schools to do the same. Republicans have been hammering away at Cooper for taking that position, tying him to Obama as a campaign tactic.
“Roy Cooper must do his job, period,” party Chairman Robin Hayes said in a statement released last week. “The President of the United States is pushing a radical new policy for bathrooms and locker rooms in our schools and our attorney general has yet to say publicly whether he supports this new policy or not.”
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The Cooper campaign hasn’t responded to the GOP’s throw-down. But soon after HB2 was enacted, Cooper held a news conference to say he would continue to defend the state in court but not this time. He said his office and the Treasurer’s Office want to retain their own anti-discrimination policies, which are broader than HB2 allows.
“In order to protect our nondiscrimination policy and employees, along with those of our client, the state Treasurer’s Office, part of our argument will be that HB2 is unconstitutional,” Cooper said. “Therefore, our office will not represent the defendants in this lawsuit nor future lawsuits involving the constitutionality of HB2.”
Cooper noted that legislative leaders have not hesitated to hire outside counsel when they wanted to. “But the fact is we shouldn’t have to be dealing with these lawsuits in the first place,” he said.
There is a certain calculus at work here: The job of attorney general is often considered a stepping stone to higher office, and when that upward ambition is challenged by the opposing party, the battle is on.
A timely study was published last year in the Yale Law Review that looked at this very issue. Noting that the acronym AG, for attorney general, has been translated to mean “aspiring governor,” the authors found about 21.5 percent of them have run for governor and 10 percent have run for Congress.
The study found that the issue of attorneys general refusing to defend lawsuits brought against their states, on the grounds that federal law trumps state law or that a law is inconsistent with the state constitution, was not much of an issue until recently.
“We’re just seeing much more of that at the state level,” Saikrishna Prakash, a University of Virginia law professor and co-author of the study, said in an interview Friday. “Not merely because of partisanship. There’s more ideological coherence to the parties.”
In the 1960s, he said, there were very conservative and very liberal Democrats and the same with Republicans. Now the parties are more clearly defined, he said, which more often leads to conflict between attorneys general and legislatures or governors.
Prakash and co-author Neal Devins, a William & Mary law professor, say a shift began in 2008, with California Attorney General Jerry Brown’s refusal to defend that state’s ban on same-sex marriage. Sixteen attorneys general have followed course; 11 of those are in purple states. Democratic attorneys general are refusing to defend same-sex marriage and gun-rights bills, while Republicans take a stand against campaign finance, gun-control and gay-rights cases.
“Whenever you see an issue that’s polarizing across the parties, a politician can curry favor with members of his or her own political party, and there’s a tendency not to defend,” Prakash said. “They are basically caving to the desires of the activists of their party.”
No right answer?
But the purpose of the study wasn’t to judge, other than to suggest that state political leaders should give some thought to whether they want an attorney general who defends the states against all lawsuits or one who exercises discretion. He said in many states it simply isn’t clear what the attorney general’s role is, as their laws or constitution don’t address it.
“I don’t think there’s any right answer to what the attorney general should or shouldn’t do,” Prakash said.
“North Carolina has a duty of the attorney general to defend all actions,” he said. “Does that mean they have to defend every statute? Not necessarily. Sometimes the state is wrong or a state official did something improper.”
Some of North Carolnia’s Council of State officials support the law and some do not. Six of the 10 statewide-elected officer-holders are Democrats. Cooper’s contention that he must represent state departments that want to retain their own anti-discrimination policies potentially puts him at odds with department leaders that support HB2.
“That’s an interesting twist,” he said. “I don’t know if I’ve heard that before. He’s got to represent all the state departments, under the statutes. It doesn’t necessarily mean that he can do this; I’m not saying he can’t. ... I think he is making an argument that coheres with want he wants to do anyway.”
“His principal argument has to be something like the following: ‘I have a duty to defend the state, but only when I think the state’s laws and the state’s constitution are consistent with federal law. I don’t need to defend them when I think that the law or constitutional provision are unconstitutional or illegal under federal law.’”
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