The debate on whether PA Attorney General (AG) Kathleen Kane should or should not defend laws in PA jives nicely with the numerous debates on whether one branch of a government should obstruct another. The answer seems to me to be “sure, why not?” An answer of “no way” could just as logically be arrived at.
The only illogical answer is: “sure, but only until the result I like is arrived at. Then the troublemakers should stop.”
Ideally, all parties would walk down the hall or shoot an email or set up a web conference or send smoke signals to compromise solid majorities prior to proposing things. Barring that, all sides must act in their vacuums, and exhaust all allowable steps to block things they don’t like.
Otherwise, my team gets what it wants and the troublemakers deal with it. That will never fly in a democracy.
The Commonwealth Attorneys Act is clear instruction to our AG:
“The Attorney General may, upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth, authorize the General Counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation or category of litigation in his stead.”
In English: The AG may decline the Commonwealth’s position, if it’s more efficient and in the best interest of Pennsylvania for the governor’s, or independent, lawyers to defend a law.
I do not know that there is a criteria, protocol or standard for determining this. As far as I can tell, it is solely at the AG’s discretion. The remedy to any conflict or disagreement, I would imagine, will be our Courts.
I add that, from history, Republican AGs could reasonably be expected to react more conservatively and Dem AGs more liberally. Given that Kane is our first elected Dem in this office, we would seem to legitimately be on uncharted ground, given that an AG appointed by the Governor might be expected to do pretty much what that Governor wants.
Maybe Kane thought l ideology a legitimate justification to make a “determination” to not enforce. Maybe she thought something else was. Either way, she seems as good to go as 41% of the US Senate holding up things 59% want. To my knowledge, there is no reason required for an indefinite filibuster. Same deal.
Regardless why, if that is not our collective desire, then We The People of PA must change the Commonwealth Attorneys Act. Because it appears we not just allow, but require our AG to make subjective and autonomous decisions on a “because I think so” basis, in these cases. It also seems that other elected AGs may have been less diligent in applying our requirement of them: our Commonwealth Attorneys Act.