This week, North Carolina’s Democrat Attorney General Josh Stein, who is running for governor in 2024, announced that he will not defend the state of North Carolina in a lawsuit over the use of abortion-inducing drugs.
It’s his job to defend the state’s laws, but he appears to be under the impression that he gets to pick and choose based on his own views. Steins says decisions on abortion “should be” decided by doctors and patients, “not politicians,” like the ones we elect to make the state’s laws.
Well, I guess that settles that. If Josh believes things should be a certain way, it doesn’t matter whether the people vote to elect legislators and those legislators pass laws on the matter. It’s very similar logic to the “living document” approach held by progressive judges (like the ones who had a majority on the state Supreme Court until this year).
The reasoning is basically, “If the law lines up with my opinions, it is untouchable. If it doesn’t, we can ignore it.” Many prosecutors across the country have been taking the same approach, deciding which crimes to prosecute based on their personal whims.
That’s a recipe for disaster, and if Republicans started doing the same with laws they didn’t like, we’d end up having two entirely different sets of laws — one set that are enforced during Democrat administrations and one that are enforced in Republican administrations.
A Carolina Law Review article, written by Wesleigh Vick, who now works in N.C. Supreme Court Chief Justice Paul Newby’s office, looked at this issue deeply and found there doesn’t appear to be any legal right for a state Attorney General to simply decline to defend the laws of the state.
Vick looks at Common Law back to the Middle Ages and then in United States and North Carolina history, saying, “Despite the recent uptick in state attorneys general refusing to defend state laws, claims of such a power were virtually unheard of until recently. Only sixteen instances arose nationwide between 1935 and 2011. Whether such action is legally permissible has become a significant controversy over the past decade.”
Vick ultimately concludes that the “Attorney General of North Carolina does not possess the power to refuse to defend state laws, even when she personally believes some higher law supersedes the one in question,” adding that the N.C. Supreme Court case Bailey v. State in 2000 should have been the final word on the matter.
But it wasn’t, as now Gov. Roy Cooper, when he was Attorney General, refused to defend H.B. 2 in court, despite arguing the year before that Republicans at the General Assembly were wasting money paying for outside legal counsel to defend the voter ID bill. Cooper’s criticism of the bill led Republicans to assume he would not give it a full defense. Similar fears have led General Assembly leaders to do the same on many other court challenges.
But if this rare, and legally questionable, circumstance of an Attorney General from one party refusing to defend laws passed by an opposing party becomes more common and accepted, where will that leave us? Stein, as the state’s “top cop” and “top prosecutor,” will be giving cops and prosecutors across the state the green light to enforce as the spirit leads them.
So while this is just one small step for Stein, it is one large step away from the rule of law for North Carolina.
If anyone is interested in the full Carolina Law Review article, it can be seen below.