Wednesday, November 26, 2014

Immigration Issue Sets Up Conflict between Governor Pence and Attorney General Zoeller Over Which Office Determines State's Legal Position

The Indianapolis Star reports:
President Barack Obama's decision to act on his own to address what to do about the millions of immigrants in the country illegally drew criticism Thursday from multiple
Gov. Mike Pence
public officials in Indiana. 
Gov. Mike Pence said he is looking into filing a lawsuit to stop the changes.
Pence, a Republican and potential presidential candidate, said Obama is not taking into account the fact that on Nov. 4, after the Senate bill passed, "the American people changed the majority in the Senate." Republicans will take control of the Senate in January.
"And so what the president ought to do," Pence said Wednesday at a gathering of Republican governors, "is to sit down in January with the new Republican majority in the Senate and the historically large new majority in the House and search for common ground."   
Pence's spokeswoman said Thursday the governor's office has had preliminary discussions with Attorney General Greg Zoeller's office about filing a lawsuit to stop Obama's action.
"After the executive order is issued, we will analyze it and determine the next steps for the state of Indiana," said spokeswoman Kara Brooks.
What has not been reported is that Attorney Zoeller and Governor Pence aren't exactly signing from the same page when it comes to illegal immigration.  Zoeller has in the past opposed any effort by the
Attorney General Greg Zoeller
State of Indiana to take on what he perceives as the strictly national issue of immigration and has refused to defend state immigration legislation in court, leading to some bitter conflicts with Republican state senators.

The key to the conflict between the state senators and potentially a conflict with Governor Pence is that Attorney General Greg Zoeller makes the absurd claim that he has the absolute authority to determine the state's legal position in court and on issues, that he is not only attorney, but he is also the client, i.e the Attorney General is the State of Indiana.  That claimed authority would trump the Governor. So even if Governor Pence, on behalf of the State of Indiana wants to sue the Obama administration, Attorney General Zoeller position's is that he can stop that effort.

What undercuts Zoeller's claim is that Indiana law already provides an opt-out provision, that when the Attorney General feels uncomfortable representing the State on and issue, outside counsel can be appointed to represent the State's position in court.  Zoeller's claimed absolute authority over the positions taken on behalf of the state of Indiana has made that opt-out provision superfluous.

For more Ogden on Politics on this issue:

Saturday, January 11, 2014, State Senate Bill Seeks to Check Power of Indiana Attorney General Greg Zoeller

Monday, December 30, 2013, Attorney General Zoeller Encroaches on Governor's Power as He Lobbies for More Federal Funding for School Resource Officers  

Tuesday, February 12, 2013, Bill Highlights Tension Between Indiana General Assembly and Attorney General

Saturday, September 8, 2012, Republican State Senators Spar with Attorney General Over Representation in Indiana Immigration Case; AG Zoeller Claims He is Both State's Attorney and Client

Also: Attorney Marcia Oddi, publisher of the Indiana Law Blog and who has had a long career in Indiana's executive and legislation branches, published an article titled "Ind. Gov't. - Who Speaks for Indiana at the Federal Level" on legislation that was introduced allowing the AG to place a deputy in Washington, D.C. with particular responsibilities.  Her article, which also contains links to stories she wrote in 2009, 2010 and 2012 on the subject of who speaks for the State of Indiana at the federal level.

For additional Ogden on Politics stories discussing this issues, see:

Thursday, July 3, 2014, Attorney General Greg Zoeller Right, But a Hypocrite, On Duty to Defend Indiana's Marriage Law

Tuesday, March 25, 2014, Attorney General Zoeller's Press Release on Duty to Defend Indiana's Marriage Law Ignores His History

Friday, October 18, 2013, State v. State?; Will Indiana's Attorney General Defend the Expungement Statute Against Challenge By Another State Official?


Anonymous said...

for the umpteenth time, this should be an appointive office.

Paul K. Ogden said...

Anon 1:26, I totally agree. This office probably more than any other should be an appointment of the Governor.

Anonymous said...

Pence is a Ballard Clone!

Anonymous said...

Pence is not a Ballard clone.

Pence was on the make before Mitch reappeared in Indiana, so I'm not sure if Pence is part of the Daniels machine or if there might be some friction there.

I'm not even sure if Pence is a Barnes & Thornburg boy. He's probably friendly with all that, but he also might have his own thing going.

I will say with complete confidence that Zoeller had better not cross Pence. Pence will lay him out flat.

It is creepy Mitch giving himself the Purdue job to spy on Pence and the rest of state government. What's cooking that Mitch can't take his eyes off?