DUTY TO DEFEND AND THE RULE OF LAW REDUX: Why a State Attorney General Should Refuse to Let a Governor Sue the Legislature

THEODORE E. ROKITA, ATTORNEY GENERAL OF INDIANA

Editor’s Note: On June 3, 2022, the Indiana Supreme Court unanimously held that the Governor was not “procedurally barred from seeking declaratory relief on the constitutionality of HEA-1123, and . . . that the law is unconstitutional.”

In 2015, former Indiana Attorney General Greg Zoeller, amidst his insightful
and correct defense of a state attorney general’s duty to defend state statutes from
constitutional attack, conveyed his view that, where necessary, an attorney
general might properly authorize another state official to hire outside counsel to
attack a state statute in court, even as the attorney general defends that statute.

Now, in 2021, the improbable forces of a global pandemic and an intramural
political dispute have conspired to put the wisdom of that assertion to the test.
In response to the threat posed by COVID-19, Indiana Governor Eric
Holcomb, using statutory power, issued a series of executive orders declaring
public emergencies and restricting the liberties of individual citizens, businesses,
and even churches in extraordinary ways. Many citizens and public officials,
including legislators, criticized those orders as excessive restraints on individual
liberty, including religious exercise. But because Governor Holcomb issued many
of those orders during months when the Indiana General Assembly was not in
session, the legislature was not immediately available to serve as a check on the
Governor’s authority. Many public officials, including former Indiana Attorney
General Curtis Hill, urged the Governor to call a special legislative session so that
the General Assembly could participate in the formulation of public policy in
response to the pandemic. The Governor refused to do so.

Read Attorney General Rokita’s entire article here.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s