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Why Attorney General Sessions Should Change Litigating Positions

The Department of Justice under Attorney General Sessions has been criticized for changing its positions in litigation from those taken by the Obama administration on such questions as whether Title VII prevents discrimination on the basis of sexual orientation. Some of the criticism has been on the merits of the new position, but others have complained about the wisdom or propriety of changing a position  that the government has already advanced in court.

This latter kind of complaint is wholly without merit.  The Department of Justice is not like a private litigant and should change positions to reflect the jurisprudential stance of the President and his new administration.  Unlike a private client, the President has taken an oath to “preserve, protect and defend the Constitution of the United States,” and must “take Care that the Laws be faithfully executed.”  Thus, as I have noted long ago, the Attorney General and his subordinates have obligations that no private lawyer has: not simply to prevail in litigation, but to advance the President’s interpretation of the Constitution and the laws made under it.

To the objection that President Trump, a non-lawyer, has no jurisprudence, the Attorney General and his subordinates should ask themselves what the President would do if he knew as much about jurisprudence as they do. With President Trump, they are substantially aided by President’s own actions. His list of potential Supreme Court justices were to a person committed originalists and textualists. Thus, there is a very strong presumption that he would want to take an originalist and textualist approach to the law. The question that the high command at the Department of Justice should be asking is how to determine the best originalist or textualist position in a case, where possible.

I say where possible, because, as Michael Rappaport has noted, the executive’s obligation to follow Supreme Court precedent, even if erroneous, is itself a complicated matter of original meaning of the Constitution. But there is no controlling precedent on the cases in which the Department of Justice under Sessions has changed its position.   Moreover, there is a tradition of the Department of defending the constitutionality of acts of Congress even if the arguments are only reasonably good, not the best. (I am not defending that tradition here). But again so far the Department has not changed its position on defending the constitutionality of federal statutes.

The more interesting question comes when an administration’s jurisprudence conflicts with one of its policies.   The tension between fidelity to the administration’s jurisprudence and adherence to its policy goals is a central dilemma for any Attorney General who takes the Constitution seriously. In my view, the Attorney General institutionally is the guardian of the “Take care Clause” in the executive branch and should push back against subordinating  law to policy.

One corollary is that Attorney Generals in an administration committed to originalism and textualism will sometimes be a thorn in the side of policymakers. I witnessed such triumphs of jurisprudential principle over policy in the Reagan administration. One notable example was the refusal of the Department to challenge state laws divesting funds from South Africa, even those the laws were in tension with the administration’s policy of engagement with that nation.  Let’s hope we see some of these triumphs in the Trump administration as well.

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