Attorney General Eric Holder told an assembly of state attorneys general this week that they should follow his lead and not provide a legal defense for state laws they conclude may be discriminatory. Holder boasted that he chose that option with regard to the federal Defense of Marriage Act, which was later partially struck down by the U.S. Supreme Court.
There are two serious flaws to that way of thinking. One is that the Constitution leaves it to courts to determine whether laws offend the Constitution, not attorneys general.
The second issue is one of the ethical responsibilities of all attorneys, who are required by their Code of Professional Responsibility to vigorously represent their clients, even if the client's cause is unpopular. It's this premise that requires lawyers to provide even the likes of serial child-killer Ted Bundy a zealous defense (Bundy was so reviled that even some anti-death penalty groups opted not to protest his execution).
In the case of gay marriage laws, while all concede that secular views on the subject are changing rapidly, attorneys general are duty-bound to represent the people of their states by defending the laws duly passed by the legislatures those people elect. They cannot ethically only defend the laws they agree with. When single individuals such as Holder or a state attorney general begin to substitute their judgment for that of the constitutional process, the rule of law begins to crumble. It's a slippery slope from there to anarchy.
But this is increasingly becoming a hallmark of Holder and the Obama administration. They seem fine with the notion of only enforcing laws they agree with. They have made end runs around laws dealing with immigration. And they have created a bizarre state of affairs with regard to federal marijuana laws, now that Colorado and Washington state have passed contradictory laws.
Under the U.S. Constitution, federal law trumps state law. Federal law makes growing and selling marijuana illegal. But the administration has made the political calculation not to challenge these illegal state activities in court or through the arrest powers provided by federal law. The administration sued Arizona to prevent enforcement of state-level immigration laws the administration disagreed with, and is suing states like Texas over voter ID requirements it claims are discriminatory. But selling and smoking dope is just fine, even if it violates the law of the land. The administration even went so far as to reassure banks they would not be prosecuted for money laundering if they provide banking services to state marijuana dispensaries.
When the executive branch ceases to faithfully execute the laws approved through the legislative process and upheld by the courts, it undermines the very legitimacy of the federal government. If elites like the president and Eric Holder can pick and choose what laws to obey, why can't the average citizen do the same?
Already we are seeing bills introduced in state legislatures directing the arrest and prosecution of federal agents who attempt to enforce unpopular federal laws in those states. Such measures are blatantly unconstitutional, but then again, so are the selective enforcement policies of the Obama administration.
Eric Holder and state-level attorneys general with similar inklings need to check their egos and remember the oaths they took as attorneys and public officials. They need to follow the law and leave it to the courts and duly elected legislatures to determine what the laws are and whether they pass muster under the Constitution.