It is no surprise, though, that this choice has its critics – as in Edward Whelan’s challenge quoted above. Aside from the complaint that this is a form of disobedience to duty, critics often suggest that it shows a lack of respect for the legislative branch – especially since, in most states and certainly at the federal level, the legislature does not have a legal right to go to court to defend its own legislative products. And, it is suggested, an attorney general is also trying to usurp the role of the courts to decide which laws are valid and which are not.
This is not a new phenomenon in American history. And, in many cases in which attorneys general have found themselves facing this dilemma, they have found a way to ensure that the court case does go on so that the legislature’s handiwork does get its “day in court.”