Proponents of conservative public policy increasingly advocate that states invoke their right of nullification, essentially invalidate federal laws with which they strongly disagree or view as unconstitutional. But it is the American Left which has put nullification into practice. And they have done so with an ominous twist – the decisions are being made by individual officeholders, not by the states.
Pennsylvania Attorney General Kathleen Kane has roiled the political waters by refusing to defend a duly enacted state law defining marriage as the union of one man and one woman. Her action; or lack thereof, came after the American Civil Liberties Union filed suit in federal court against the Pennsylvania statute in the wake of recent rulings by the Supreme Court of the United States.
In attempting to justify her refusal to perform the duties of the office to which she only recently ascended, Kane proclaimed the law prohibiting same-sex unions to be unconstitutional. She also professed to be bound by legal ethics not to defend a client (the commonwealth) with whom she has a personal disagreement. Therefore, neither she nor anyone in her independently elected office would defend the statute in court.
This is not the first time the Attorney General has confused her job with that of a state Supreme Court Justice. Several months ago Kane invalidated a contract negotiated by the Corbett Administration with a British firm to take over operations of the Pennsylvania Lottery. Kane tossed the contract claiming it was unconstitutional. It is not, however, the job of the Attorney General to determine the constitutionality of laws, that is the job of the state Supreme Court.
Setting aside the specific issue of same sex marriage, Kane’s refusal to defend a law enacted by a majority of both houses of the General Assembly and signed by the Governor is a chilling example of nullification by the Left. The Attorney General has essentially declared she has the legal power to act as the executive, legislative, and judicial branches of government combined. If she disagrees with a law, or personally views it as unconstitutional, then she will either block its implementation or refuses to uphold it.
Further, the action is apparently unprecedented. Former Attorney General Ernie Preate told the Pennsylvania Independent that: "What happened . . . had never happened before and that is when the attorney general announces at a press conference that she is not going to defend a lawsuit in which she is a named party." Preate also questioned the effectiveness of her action stating: "The courts do not recognize litigation by press release. The court will only recognize one thing. You’ve got to come in as the defendant in the case and file answers."
This much is clear: the Attorney General of Pennsylvania has refused to fulfill the duties and obligations of her office, opting instead to climb into the bully pulpit and publicly posture on an emotionally-charged public policy issue. That she holds a personal opinion on the subject at hand is her right as a citizen, that she would utilize her office to unilaterally nullify a state law is unacceptable.
But, nullification by the Left has become something of an art form in recent years. One needs look no further than the President of the United States who, when congress refuses to accede to his policy goals, simply issues executive orders. Congress won’t pass Cap and Trade or enact a carbon tax? Issue sweeping executive orders placing a wide range of environmental restrictions on business. Congress won’t pass additional gun control legislation? No problem, tighten regulations by executive order. Even when congress does pass what he wants – as in the case of the Affordable Health Care Act/Obamacare – the administration issues waivers or delays implementation of key components when the law harms a key constituency or proves unworkable.
Simply put the political Left in America feels so strongly about the superiority of its own beliefs it is willing to trample; by-pass and nullify the governing structure of the national and state constitutions. Don’t agree? Then govern by decree! That is what has been happening for the past five years at the national level. It is an attitude, and a tactic that Pennsylvania Attorney General Kathleen Kane has clearly adopted.
(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. He was executive assistant to former Pennsylvania Attorney General Ernie Preate. Contact him at [email protected])
Permission to reprint is granted provided author and affiliation are cited.