The American Legislative Exchange Council informed the U.S. Supreme Court in an amicus brief filed in Berger v. North Carolina State Conference of the NAACP that state legislatures should have the ability to defend the constitutionality of state laws in court.
State legislatures have a strong interest ensuring that the laws it debates and enacts are found to be constitutional. These legislatures should be able to determine who should represent the state when laws are challenged. And while federal courts can establish procedural rules, courts’ analysis should not use the rules to trump state law. Instead, state law should be used to help interpret and inform federal procedural rules.