by Bob Geary
It can't be a good day for N.C. Attorney General Roy Cooper, who's all but declared his candidacy for governor in 2016.
On the same day that Virginia Attorney General Mark Herring, also a Democrat, announced that he will not defend Virginia's ban on same-sex marriages because he's convinced it's unconstitutional — a courageous stand — Cooper's office released a disappointing and weakly reasoned advisory opinion on immigrants' rights.
Chalk up a plus for the recently elected Herring, who is already showing some backbone and a willingness to stand up for constitutional rights.
Mark down a minus for Cooper — another one.
I've written previously about Cooper's defense of the Republicans' voter-suppression law (House Bill 589), which the NAACP and others have challenged as unconstitutional. It's not clear whether Cooper thinks it's unconstitutional, too, but is defending it anyway; or if he thinks it doesn't violate the Constitution.
Similarly, Cooper is also defending the Republicans' racial gerrymandering of congressional and legislative districts — raising the same question about Cooper's legal reasoning.
Also today, Cooper was reported to be on the fence as to whether to continue to defend the Republicans' ultrasound-with-lectures law after it was struck down by a federal judge as violating a woman's right to choose whether to terminate her pregnancy. At the trial court level, Cooper's office argued that the ultrasound law did not violate constitutional rights.
Here's what Herring said, in part, about the Virginia law and his refusal to defend it:
"After thorough legal review, I have now concluded that Virginia's ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender," Herring said.
Pretty straightforward. There's more on Herring's position here.
It's worth noting that the same issues have been raised in court against North Carolina's ban on same-sex unions. Cooper, unlike Herring, is defending our state's ban, arguing in court that it does not violate the Fourteenth Amendment.
Outside of court, Cooper has given speeches declaring his support for same-sex marriage rights. In court, he argues against them.
The advisory letter from Cooper's office today, written to a legislator, was on the question of whether undocumented immigrants who were brought to this country as children by their parents, and who are now here legally as a result of the Obama Administration's Deferred Action for Childhood Arrivals (DACA) policy, should qualify for in-state tuition at North Carolina's public universities and community colleges.
These are the so-called DREAM Team immigrants who've grown up in the U.S. and graduated from North Carolina high schools. According to the Cooper-issued opinion, "an individual is eligible for in-state tuition in North Carolina … if he or she is a legal resident who is domiciled in the State of North Carolina and who has maintained legal residence in the State for at least 12 months…." This statement is attributed to "North Carolina General Statutes."
Further, the opinion says, the DREAM Team children, now young adults, are legal residents because of their protected status under DACA. Only instead of calling them legal residents, the opinion chooses to say instead that they are "legally or lawfully present" in North Carolina — as if that might mean something different.
Such DACA-protected immigrants were entitled to North Carolina drivers' licenses, pursuant to a Cooper opinion issued a year ago to the state Division of Motor Vehicles.
But they're not entitled to in-state tuition, according to this Cooper-issued opinion.
That's not clear, at least not from this advisory opinion. All it says is that federal law (8 U.S.C Section 1621) doesn't require that DACA-status individuals be eligible for in-state tuition "unless a specific state statute provides otherwise." But weren't we just told that "North Carolina General Statutes" call for in-state tuition for all "legal residents?"
I'm not a lawyer, but i'm thinking that there's an equal protection argument here, you know, under the Fourteenth Amendment:
"No State shall … deny to any person within its jurisdiction the equal protection of the laws."
Anyway, this legal brief — and it's very brief — ends with a disclaimer from its authors, two special deputy attorneys general named Alexander Peters and Kimberly Potter. It's "an advisory letter only," they write. "It has not been reviewed or approved in accordance with the procedures for issuing an Attorney General's opinion."
In other words, Attorney General Cooper was asked to issue an opinion about this DREAM Team issue and, well, he sort-of did, but officially he didn't.
What he definitely didn't do, I'd say, is issue an opinion spelling out in understandable terms why a discriminatory state statute isn't discriminatory.