PRYOR VS. MOORE

Feddie of Southern Appeal has an interesting prediction:

Moore is set to announce this Thursday whether he will abide by the district court’s order. If Justice Moore indicates that he will not honor the court order, and thus mocking the rule of law, I predict Pryor will being down the hammer and publicly rebuke him.

It would be interesting although I’m not too sure. For one thing, Pryor’s job is to enforce the law of Alabama, not federal judicial pronouncements. For another, this would be hugely unpopular with his electoral base and not only kill his political future in Alabama but possibly even hurt President Bush in the Deep South. And it wouldn’t even help Pryor get confirmed to the 11th Circuit as it would be dismissed as pandering to Congressional Democrats.

Update (0935 8-13): Howard Bashman reports that the District Court judge contemplates using civil contempt measures to carry out his order:

Finally, in view of the Chief Justice’s recent reassertion that this court does not have the authority or jurisdiction to enter an injunction in this case, an argument already rejected by this court and the Eleventh Circuit, this court believes it appropriate to provide the parties with some preliminary idea of the court’s thinking as to how the court will proceed if later there is an allegation that today’s injunction has not been complied with within the time allowed. If the plaintiffs file a motion for civil contempt, the court will immediately issue a show-cause order. If, based on the show-cause-order response and the evidence presented at a hearing, there is a finding of civil contempt, the court could levy substantial fines against Chief Justice Moore in his official capacity and, thus, against the State of Alabama itself, until the monument is removed. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985) (“an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity”). For example, the court could levy a fine of $5,000 a day for the first week (that is, for each of the first seven days), with the amount of the fine perhaps to double at the beginning of each and every week thereafter to the extent allowed by law and with the fine amount to be paid into the court at the end of each week, until there is full compliance with the order the court enters today.

It is the initial obligation of the State of Alabama, not this court and not any federal official, to remove the monument. Because the Chief Justice accepted the monument, and has maintained it in the Alabama Judicial Building, in his capacity as a state official, it is the obligation of the State of Alabama (acting through the Chief Justice and, should he fail or be incapable of carrying out his duty under the rule of law, some other appropriate state official) to remove it. The court, at this time, does not envision a scenario in which there would be an opportunity for any physical confrontation between federal and state officials or between federal officials and anyone else. If called upon, this court intends, at this time, to achieve compliance by first exhausting the traditional civil-contempt process of levying fines.

Of course, the problem with a fine is the same as the initial problem: Who’s going to make me? Will the Bush Justice Department force compliance if Moore balks?

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kristopher says:

    The more likely scenario is that Pryor acknowledges that he supports Moore’s position, but that Roy is wrong to defy the court order.

  2. Norbizness says:

    James: As for the “job includes only Alabama law”, the answer is no. May have worked for George Wallace back in the day, or for whoever was the Attorney General of Arkansas back in 1955, but not today.

    CHeck the CalPundit trackback for more info, but trust me, I’m saying it more nicely.

  3. James Joyner says:

    Nor,

    Enforcement of federal law is outside the jurisdiction of state officials. Forcing compliance with federal court orders is up to the US DOJ, not the Alabama attorney general.

    That wouldn’t preclude him making a public statement on the matter, of course.

  4. Joe says:

    Whuh?

    Enforcement of federal law is outside the jurisdiction of state officials? That’s one of the sillier things I’ve heard so far this week, and it’s not like it’s Monday.

    OF COURSE state officials may–and in most states are required to–enforce federal law. Indeed, many federal laws, as enacted, specifically contemplate enforcement by state officials. You know why the Constitution did not specifically reference the Justice Department? Because it wasn’t necessary. It was fully intended that state officials would enforce federal statutes.

  5. Pryor and Moore
    James comments on a post at Southern Appeal predicting that Attorney General Pryor will rebuke Judge Moore for refusing to abide by the federal court ruling to remove the Ten Commandments monument. While I agree with James that this would not be a part…

  6. CalPundit says:

    Do the Right Thing
    DO THE RIGHT THING….Alabama Chief Justice Roy Moore is planning to announce on Thursday whether or not he will obey a court order to remove his Ten Commandments monument from the Alabama Judicial Building. James Joyner, responding to a suggestion…