The Washington PostDemocracy Dies in Darkness

Is it legal for North Carolina’s attorney general to not defend the state’s bathroom law?

North Carolina Attorney General Roy Cooper. (Harry Lynch/News & Observer via AP)

The battle lines are drawn between North Carolina and the federal government over the state's controversial bathroom law. Everyone's suing everyone, basically.

But there's one defector: North Carolina Attorney General Roy Cooper, a Democrat who happens to be running for governor, has said he won't defend the state against the Justice Department's lawsuit because he thinks the new law is discriminatory and "a national embarrassment." And there may not be much anyone can do to shake Cooper from that decision.

His opponent, Gov. Pat McCrory (R), is trying to make that a political issue in the two men's hotly contested race. Cooper's not doing his job, McCrory argues. "As the state's attorney, he can't select which laws he will defend and which laws are politically expedient to refuse to defend," he said.

North Carolina's LGBTQ community protests the state's new anti-transgender bathroom law. (Video: Whitney Shefte/The Washington Post)

Adding ammo to the governor's argument, two law professors who study this thing wrote a Los Angeles Times op-ed arguing North Carolina's law indeed requires its top lawyer to "defend all actions in which the state may be a party." What's more, state attorneys general refusing to defend laws and the political accusations that come with it is a worrying trend for democracy, said the professors, Neal Devins at William & Mary and Saikrishna Prakash at the University of Virginia:

The attorney general's decision represents a trend. More and more state attorneys general are refusing to defend divisive laws, especially those championed by opposition party governors and legislatures. Many seem to have concluded that non-defense of state laws is an option to be exercised in the service of politics.
Attorneys general have always been political creatures and so, in one sense, nothing is new here. And yet states ought not ignore the uptick in non-defenses and charges of lawlessness and bad faith that result from it. They need to reconsider the function of attorneys general and how best to defend the constitutionality of state laws. Indifference to such questions should come to an end.

But even if Cooper is running afoul of North Carolina law, it might be within his right to do so, say two other legal experts The Fix talked to. He's a state attorney general sworn to uphold both state and federal law, and in this case the federal government says his state's bathroom law isn't legal.

Plus, it's unlikely Cooper will get in trouble for his decision. There's little history of state attorneys general being punished for refusing to defend their state's laws.

"That's a good question," said U.N.C. constitutional law professor Michael Gerhardt when I asked whether a state attorney general has ever been punished for not defending a state's law.

Most state constitutions have means for disciplining state officials who are derelict in their duties, he said. For instance, Alabama's top judge recently got suspended from the bench after a state commission alleged he disregarded the U.S. Supreme Court decision legalizing same-sex marriage. But Gerhardt couldn't think off the top of his head of such a fate befalling an attorney general.

Of course, the ballot box could be one form of punishment. North Carolina voters could decide Cooper is not doing his job and vote against him in the state's close governor's race this November. Most polls show a tight race between him and McCrory, and the bathroom law has emerged as a real issue in the race.

But it's also pretty rare for a hotly contested election to hinge on the legal definition of a state official's job.  It's more likely that Cooper's broader stance on the law — opposing it — will be one of many factors North Carolina voters will use to decide who to vote for in November.

On May 9, North Carolina Gov. Pat McCrory (R) and U.S. Attorney General Loretta Lynch announced dueling lawsuits regarding HB2, a law that requires people to use public restrooms according to the sex they were assigned at birth, rather than the one they identify with. (Video: Monica Akhtar/The Washington Post)

Still, Cooper's role as attorney general is playing into the broader political debate over this bathroom law. A similar situation could happen in any one of the 42 other states where a state's attorney general is popularly elected and may not match up politically with his or her state legislature and governor. So let's step back for a moment and get the School House Rock version of a state attorney general's job: The legislative branch makes the law, and the executive branch (of which an attorney general is a part) enforces the law.

The legal fight over North Carolina's transgender law, explained in 4 questions

State attorneys general in particular have to balance which laws to enforce — their own and the federal government's.  And the federal government's almost always win out when there is a conflict. "A state official can't disregard what federal law says," Gerhardt said.

There's also plenty of historical precedent for what Cooper's doing. The executive branch has, over time, found plenty of ways around enforcing or defending laws it doesn't think pass legal muster, said Cornell law professor Mike Dorf.

"There is a long-standing view that says that you don't enforce an unconstitutional law, because an unconstitutional law is not a law," he said.

When the Obama administration decided the Defense of Marriage Act was unconstitutional, for example, it didn't initially stop enforcing it. But it did say that it wouldn't defend a constitutional challenge to it.

Straddling the "enforce but don't defend" line is something that's been done at least since President Ronald Reagan's administration, Dorf said. It's just becoming more frequent as Congress's ability to rewrite laws gets mired in gridlock. Lately, legislating in Washington has followed a pattern of: The Obama administration acts to interpret an existing law, Republicans in Congress challenge that action, and it's left to the courts to decide.

That's kind of what's happening in North Carolina. The Obama administration thinks the bathroom law runs afoul of federal civil rights law. The law's supporters say the Obama administration is stretching the federal law too far. Both are turning to the courts for an answer.

And that's where this political and legal drama will eventually be solved — in the courts, with or without Cooper's participation in the case. His opponents can cry foul about Cooper's absence, but it will likely be up to the voters of North Carolina to decide how they feel about that, if they feel anything at all.