As he runs for governor, Democratic AG Josh Stein is pressed to defend GOP laws | Opinion
North Carolina Attorney General Josh Stein is walking a legal tightrope as he seeks the 2024 Democratic nomination for governor.
Stein will have to balance his obligation to defend state laws in court and the political risk of defending laws passed by the Republican-controlled General Assembly that are unpopular with Democrats.
The delicacy of that balance became clear recently when the attorney general announced he would not defend the state’s new 12-week ban on abortion because he said it was unconstitutionally vague. The legislature passed a second bill to clarify the abortion law and Stein’s office is reviewing the changes. Stein said he will defend the revised law if he concludes that it is no longer unconstitutional.
That’s unlikely to be the last case in which Stein will have to choose whether to defend a state law. Republicans are using their veto-proof majority to pass laws bitterly opposed by Democrats and likely to draw legal challenges. That pattern is likely to continue well into 2024.
“I’m very concerned with a gerrymandered General Assembly abusing its power to harm the people of North Carolina,” Stein told me this week.
Although he’s aware of the political fallout from state legislation, Stein told me his decision on whether to defend a law is a legal rather than a political calculation. “What benefits me as a candidate is not the standard,” he said.
Republican legislative leaders will get a chuckle out of that. They’ve accused Stein of making political calculations throughout his tenure.
If Stein is the Democratic gubernatorial nominee, Republicans will say that his refusal to defend state laws or his stepping back from personally defending them is an evasion of his duties.
State Senate leader Phil Berger took that line of attack after Stein initially refused to defend the abortion ban. “For him, based on his personal preferences, not to do that — I think that’s a failure on his part,” Berger said.
Stein said that charge is off the mark.
“They keep saying it, but it’s just not true,” he said. “I’ve been doing my job. I swore my oath to defend North Carolina law and the North Carolina constitution so long as it does not conflict with the United States Constitution. And that is exactly what I’ve done as attorney general – honored my oath.”
Stein’s office provided a list of more than two dozen legal challenges to state laws since he took office in 2017. In almost all instances, his office defended the state laws, though in several cases he personally recused himself so he could speak out against gerrymandering. Lawyers from his office went ahead with the defense.
There’s precedent in North Carolina for an attorney general refusing to defend a controversial law. As attorney general, Roy Cooper would not contest lawsuits challenging House Bill 2.. The so-called “bathroom bill” barred transgender people from using bathrooms in public buildings that did not correspond to their gender at birth.
Cooper’s stand against the unpopular law helped him unseat Republican Gov. Pat McCrory in 2016.
Law professor Neal Devins at William & Mary was a co-author of a 2015 Yale Law Journal article on whether attorneys general can refuse to defend state laws. I asked him what he makes of Stein’s being caught between a Republican-controlled legislature and his ambition to become a Democratic governor.
Devins said, “It’s fair for the attorney general to have a political agenda and to seek to advance that political agenda. But if there’s an obligation to defend state law, then you have to sort of suck it up and defend state law.”
But he added that Stein’s move to recuse from cases while his office pursues them may “thread the needle” between his legal obligation and his political position.
“It may be one of those things where either way he’s going to suffer political costs and he just has to figure out what is the best path,” Devins said. “He might answer that as a lawyer would answer that – what is my responsibility? Or he might answer that as a politician would answer that.”
Such dilemmas are becoming fewer as political polarization creates more states where one party controls both the legislative and executive branches. But when political pressures arise, Devins said, an attorney general’s political calculations will too.
“It’s not surprising that an attorney general would be political,” Devins said. “There is a joke that AG stands for ‘aspiring governor.’ ”
So far, Stein has been able to walk the tightrope, but an aggressive and unchecked Republican-controlled legislature will likely keep pressing him to defend the indefensible.
Clarification: An earlier version of this column said Attorney General Josh Stein will defend the revised state abortion law. Stein said he is assessing the revisions and if he thinks the law is no longer clearly unconstitutional, he will defend it.
This story was originally published July 9, 2023 at 4:30 AM with the headline "As he runs for governor, Democratic AG Josh Stein is pressed to defend GOP laws | Opinion."