October 18, 2021

23 states ask Supreme Court to affirm AGs rights to defend state laws

3 min read

Texas has joined a 23-state coalition asking the U.S. Supreme Court to rule that an attorney general has the right to defend his or her state’s own laws. The statesy filed the brief after the Supreme Court agreed in March to hear Kentucky Attorney General Daniel Cameron’s appeal.

“As a matter of Kentucky law, the final say on whether to accept a decision enjoining state law does not belong to the secretary, but rests with Kentucky’s Attorney General,” Cameron argued in his brief to the Supreme Court.

At issue is “whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law,” SCOTUS blog explains.

In 2018, the Kentucky Legislature passed HB 454, which prohibits dilation and evacuation abortions after 11 weeks, which was signed into law by then Republican Gov. Matt Bevin. The state was sued and the law was struck down as unconstitutional by a district court, which two Sixth Circuit Court judges upheld on a technicality last June.

In a 2-1 vote, a Sixth Circuit panel “allowed the unilateral capitulation of a single official to be the final word on whether a duly enacted law would be invalidated (and thus de facto repealed),” 23 state attorneys general argue in their brief. “It did so even though Kentucky’s Attorney General, who has unquestioned authority to represent Kentucky in federal court, timely sought to defend the statute on the merits. This case can and should be resolved as urgent.”

Kentucky’s health secretary initially defended the law in court, but no longer did so after the 6th Circuit judges struck it down.

Cameron then asked the 6th Circuit for permission to join the case to defend the law, and it rejected his request. Cameron then appealed to the U.S. Supreme Court, asking the court to decide on whether he should be allowed to intervene. The high court agreed, and will hear his appeal next fall.

However, the high court denied his request to weigh in on whether the case should be sent back to the 6th Circuit for reconsideration in light of another case the court had recently ruled on.

“The Sixth Circuit’s ruling imperils the democratic process because it empowers other state officials to strategically surrender lawsuits challenging state laws that they disagree with,” the 23 attorneys general argue in their brief.

They are asking the court to reverse the Sixth Circuit’s denial of Cameron’s request. They are also asking the court “to hold that when a state law is challenged and the named parties decline to continue defending the law at any stage in the litigation, it is an abuse of discretion to deny intervention by a duly authorized agent of the state who moves to intervene promptly after learning the named parties have stopped defending the law.”

When joining the brief, Texas Attorney General Paxton asked in a statement, “If attorneys general are prohibited from intervening on the states’ behalf to defend our laws, how do we defend the interest of the state we are elected to represent?

“Dismemberment abortions are gruesome and inhumane, and it is troubling that a court would block a state’s authority to protect the lives of unborn children from such a barbaric practice.”

States joining the brief in support of Kentucky include Arizona, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

This article was originally posted on 23 states ask Supreme Court to affirm AGs rights to defend state laws

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