Should The Attorney General Enforce Laws He Thinks Are Unconstitutional?(My Title)

The Tallahassee Democrat ^ | June 5, 2002 | Nancy Cook Lauer

[FreeTally]

Candidates divided on defense of laws

By Nancy Cook Lauer

DEMOCRAT CAPITOL BUREAU CHIEF

Whether the attorney general should defend laws he thinks are unconstitutional and how involved he should be in ensuring the independence of the judiciary were top issues Tuesday night in a debate among candidates for Florida's top legal post.

More than 200 people - mostly attorneys - turned out to hear the debate among four of the six candidates for attorney general sponsored by the Tallahassee Bar Association and the Capital City Bar Presidents' Council.

The office is left wide open by the pending retirement of term-limited Bob Butterworth, the Democrat who's held that position for 16 years. Butterworth is the only Democrat on the Cabinet, and Democrats are passionate about keeping the post in the party. All three Democratic candidates showed up for the debate: Buddy Dyer, D-Orlando, Tallahassee Mayor Scott Maddox and Deputy Attorney General George Sheldon.

Two of the Republicans - Education Commissioner Charlie Crist, the apparent front-runner, and Sen. Locke Burt, R-Ormond Beach - pleaded scheduling conflicts and did not attend. Republican Tom Warner, a former lawmaker and now the state solicitor general, held the banner for his party.

"My name is Tom Warner, and apparently I'm the only Republican candidate for attorney general," Warner quipped in his introduction.

Warner found himself frequently at odds with his Democratic opponents, especially when it came to whether the attorney general should defend laws he thinks are unconstitutional. Sheldon and Dyer were strong advocates for the attorney general defending the constitution first and the Legislature second.

"The specter of the attorney general of this state deciding which law they like and which laws they don't like - that's something we can't have in this state," Warner said. "If the attorney general can't defend the law, the attorney general has to step down."

Sheldon pointed out that Butterworth has declined to defend the state against issues he thinks are unconstitutional - the "Choose Life" license plate is an example - but also has defended the state on other issues that he personally may not have agreed with.

"It is not an issue as to whether the attorney general likes or doesn't like the law," Sheldon said. "If a law on its face is legally unconstitutional, the attorney general of Florida is sworn to defend the constitution."

Maddox summed up the dilemma this way: "I think the bigger question is whether or not we have an independent judiciary. ... As long as we have a strong, independent judiciary in this state, the constitution will be defended, and that's where the real battle lies."

(Note: Typical Scot Maddox not addressing the issue)

Dyer agreed, saying "there is absolutely nothing more fundamental to an independent judiciary." He also said the judicial branch had been under attack by the Legislature over the past few years.

"I think the attorney general is the highest elected legal official and has a responsibility to be an advocate," Dyer said.

The candidates also fielded questions about the civil rights of victims, the 2000 presidential election, whether they would keep the current staff in the Attorney General's Office and what their first target might be for investigation.

Contact Capitol Bureau Chief Nancy Cook Lauer at (850) 222-6729 or nlauer@taldem.com.

[FreeTally]

Well, I thought that this was interesting that candidates for the Florida Attorney General were discussing a topic that come up frequently here on FR.

Many here believe that the Attorney General, whether of a State or the United States, has a sworn duty to uphold the Constitution, which means he/she should not enforce laws he/she feels are unconstitutional. Others believe that the Attorney General must enforce all laws until the Supreme Court determines that the law in question is unconstitutional, for we would have no rule of law if the AT could pick and choose what to enforce.

Well freepers, what do you think??

[ArneFufkin]

Yes. His opinion of a law's Constitutionality means nothing. His job is to enforce existing law.

[FreeTally]

Bump.

[FreeTally]

There is nothing either in the Constitution or the oath which makes the Supreme Court the arbiter of how to interpret the Constitution.

The ability of the Supreme Court to "interpret" the Constitution was probably the first "law" ever made by the Supreme Court. It could be argued that its been all downhill since.

[Protagoras]

His opinion of a law's Constitutionality means nothing. His job is to enforce existing law.

True enough, but then it becomes questionable as to whether he should be required to take an oath which may be at cross purposes to his job.

[Tauzero]

Good one! ;)

[Texaggie79]

I think his oath to uphold the Constitution can be interpreted 2 ways. It could mean, to uphold what the current law holds as constitutional, or it could mean, what he, himself believes to be constitutional. I really don't know.

[BenLurkin]

It is a question of duty. The AG's first duty is to the law and not his or her legal judgment? Should the AG substitute his or her legal judgment for that of the legislature and courts? No. Open contempt by an elected or appointed offical for our system of laws would invite chaos.

[MozarkDawg]

Baloney. He's the one who took the oath. There is nothing either in the Constitution or the oath which makes the Supreme Court the arbiter of how to interpret the Constitution.

There is also no provision for the Attorney General to decide which laws he will enforce and which he will not. Congress wrote 'em, president signed 'em ... if the AG don't like them, he, like any other citizen, must then do his best to get them overturned.

If the AG may arbitrarily decide which laws are or are not unconstitutional, which ones he feels he should enforce, which ones he should not, then any citizen may also decide arbitrarily which laws are or are not unconstitutional, which ones he should obey and which ones he should not.

That's not how the system works.

[hchutch]

I think that the AG can say he believes a law is unconstitutional while it is being DEBATED in the legislative branch. However, once it becomes law, then he has a responsibility to defend it against all comers. We have an adversarial legal system - where both sides have to go all out.

IIRC, there's even legal ethics requirements to give 100% or something like that in a case. I'm not a lawyer, so don't quote me on that.

[EllaMinnow]

I'm sure little Scottie Maddox thinks that our current Florida Supreme Court is a bastion of the "independent judiciary."

Sure seems like the Democrat candidates are reading off a different page than the Democrat senators on the Judiciary Committee who thumped their chests and pounded their desks as they demanded that John Ashcroft uphold federal law whether he agreed with it or not!

[MozarkDawg]

I think his oath to uphold the Constitution can be interpreted 2 ways. It could mean, to uphold what the current law holds as constitutional, or it could mean, what he, himself believes to be constitutional. I really don't know.

The oath to uphold the Consititution means that he will go by WHAT IT SAYS. The Constitution says the Congress writes the bills, the presidents signs them into law. The AG is not specifically named in the Constitution as the one person in the land who will decide which laws, passed and unchallenged, shall be enforced and which shall not. It is not a violation of his oath to enforce all the laws passed and unchallenged, though he may personally think them unconstitutional, rather, IT IS HIS JOB.

We do not fix Congressional/presidential errors that way in this country.

[tpaine]

Wrong again fufkin. ----- The U.S. constitution is the Law of the Land, and must not be violated by state laws. -- Thus, every attorney must support & honor, - his duty to U.S. & state constitutions FIRST, than his duty to the law.

ATTORNEY'S OATH OF OFFICE

CALIFORNIA BUSINESS AND PROFESSIONS CODE

6067. Oath. Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license.

(Added by Stats. 1939, c 34. p. 354, Sec. 1.)

[coloradan]

Separation of powers requires that he not enforce laws which he thinks are unconstitutional. The legislature passes laws. If the executives and judiciary enforced and tried ALL of them, all the time, no matter what, then they have no power, it all rests in the legislature. Suppose the legislature passes Jim Crow laws, or the Jews have to get on cattle cars. Only those who can say that "I was was only following orders" is a valid defense can make a case that the police and AG MUST enforce all laws, no matter what.

Once a law is passed, the executive may or may not enforce, the judiciary may or may not try, and the jury may or may not convict, and having convicted, may or may not sentence. Only the jailer has the duty to do what he is ordered to do - that's the separation of powers.

[MozarkDawg]

.. his duty to U.S. & state constitutions FIRST, than his duty to the law.

His duty to the Constitution(s) IS his duty to the law. There is no separation whatsoever. His job is to enforce the laws, ALL THE LAWS, passed by Congress (or Legislature) and signed by the president (or governor). Again, if one appointed official may decide what he will or will not enforce, then I may decide what I will or will not obey. This is a ridiculous argument.

[Protagoras]

I really don't know.

And that is the first time I have seen you make a statement that was entirely correct. :-)