Disregard of Unconstitutional Laws in the Plural State Executive
60 Pages Posted: 22 Aug 2016 Last revised: 22 Jul 2017
Date Written: August 17, 2016
Abstract
In the past several years, top state officials from both major political parties have begun publicly refusing to defend controversial laws against constitutional challenges. At the same time that they have rejected a duty to defend these laws, however, they have proclaimed a duty to continue enforcing them until the issuance of court judgments. In light of an emerging scholarly consensus that most state attorneys general (and, presumably, other top state officials) owe no legal duty to defend state laws that they consider unconstitutional, this Article argues that the supposed duty to enforce unconstitutional laws is no more real than the duty to defend them.
Reviewing the text and structure of state constitutions, the Article contends that all state constitutions require governors to disregard unconstitutional laws, five state constitutions require the same of other top officials, and none prohibits the practice. The Article also explains that state constitutions place executive disregard in a more defensible position than does the federal Constitution. It then explores likely political and strategic motivations for the enforce-but-don’t-defend tactic. Finally, the Article recommends that non-enforcement accompany public non-defense, suggesting — perhaps counterintuitively — that tying these two together will help ensure that statewide officials employ non-defense to advance genuine constitutional views rather than political agendas.
Keywords: executive review, executive disregard, non-enforcement, nondefense, non-defense, attorney general, governor, state constitutions
Suggested Citation: Suggested Citation