North Carolina Law Review

University of North Carolina School of Law

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A Defense of the Defense: An Analysis of the North Carolina Attorney General's Legal Ability to Refuse to Defend State Laws

October 3, 2018

96 N.C. L. Rev. 1855 (2018)


Since 2008, more and more state attorneys general around the nation have begun refusing to defend state actions by their respective state governments, usually on the grounds that a given state law violates either the State or Federal Constitution. This trend has loomed especially large in North Carolina over the past four years. Whether such action is legally permissible has become a significant controversy over the past decade.


These instances have most often occurred in “purple states,” where the predominant political party of the state legislature is the opposite of the attorney general’s, and where the attorney general may be seeking to curry favor with a particular voting base or incite political opponents. Scholars suggest that this temptation to appeal to certain electoral coalitions will likely lead to continued instances of state attorneys general refusing to defend state laws. Though increasingly common, most attorneys general who have refused to defend a state law cannot point to an express source of power granting them the ability to do so. In fact, most state constitutions and statutes—the sources of an attorney general’s powers and duties—do not directly mention a duty to defend (or not defend), which leaves the analysis in most states up to structural inference and scarce case law.


This Comment attempts to answer the question of whether the Attorney General of North Carolina can refuse to defend state laws. It examines a wide range of authorities on the scope of an attorney general’s power from medieval times to the present and ultimately argues 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.




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