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57: On the defense

57-defense
Today, we’re talking about the choice to go on the defense.
Specifically…

Should outside groups have the ability to step in if the government does not want to defend a law in court?

Show notes and links:
Should Private Citizens Defend State Laws in Court? (Governing)
Another AG won’t defend state law; this one gives NRA standing to challenge gun regulations (ABA Journal)
Presidential Decisions Not To Defend The Constitutionality Of Federal Law: A Brief History (Outside the Beltway)


Full episode text

It’s one of the basic principles of a democratically influenced governmental structure – that anyone, anywhere, with an opinion or an idea has the opportunity to present the idea, to lobby, and work to get their idea ensconced in law. Ideas that are popular are given more of an opportunity. In the United States system (as well as many parliamentary systems around the world), separations of power are in place to help minimize the negative effects that populism may have in the long run.

One of the features of this structure in the United States is that, on the federal level, the executive branch can decline to defend a law in court when and if it is challenged, essentially agreeing with the challenge. It’s been done dozens of times in everything from immigration and taxes to civil rights cases.

Which creates a very difficult problem sometimes. In states with initiative processes, anyone can bypass the elected government and put a law on the ballot if certain conditions are met. Yet if a law makes it to the ballot, passes with popular support, becomes law, is then challenged in court, and the governmental body that was just bypassed refuses to defend the law…. should a third party be allowed to step up and make that choice for the duly elected government? Is a law, like a criminal defendant, entitled to a vigorous defense, even if it has no direct impact on those that wish to defend it? It’s come up before and I’m sure it will come up again.