Op-Ed: House should defend power delegated in the Constitution

By Dan Itse

On Sept. 20, the Supreme Court was a no show at the public hearing for House Resolution 13 which repudiates the court’s opinion the Legislature cannot order the attorney general to join a lawsuit.

Earlier this year, HB89 was introduced directing the attorney general to join 26 other states in a lawsuit against Obamacare. Immediately, the attorney general took the position that the Legislature does not have the power to direct him to engage in any particular lawsuit. Despite the attorney general’s objections, HB89 received a positive policy recommendation from the State and Federal Relations Committee, and the House voted ought-to-pass.

HB89 was then sent to the Constitutional Review and Statutory Recodification Committee, which discovered that the Legislature has a history of making particular orders to members of the Executive branch, including 13 to the attorney general. One, a 1994 bill sponsored by Sen. Shaheen, ordered the attorney general to engage in a federal lawsuit to take possession of Seavey Island, which he obeyed. The committee found HB89 constitutional, and the House voted ought-to-pass again.The Senate could not reach a conclusion as to the constitutionality HB89, and instead sought an opinion from the Supreme Court. The court opined that though the Legislature originally had this power, it ended with the adoption of the 1966 Amendment to Part II, Article 41 under of “separation of powers.” To re-enforce this opinion the Supreme Court quoted part of Mr. Eaton’s summary of the amendment (Resolution 58) to the convention, “Now we know the doctrine (of separation of powers) is essential to American government and we know it requires constant implementation. Whenever the executive branch needs authority it cannot legislate one word. Only the Legislature manufactures authority. If the General Court (Legislature) needs better enforcement, it cannot enforce compliance or restrain violations. These are executive functions.” From this the Supreme Court concluded, “This history reveals that the purpose of Part II, Article 41 is to grant to the executive branch the exclusive(sic) power to enforce(sic) the law.” By this the court means that the Legislature cannot direct the attorney general to engage in a particular lawsuit.

The Supreme Court seemed unaware of Mr. Eaton’s introductory remarks in that same speech, “Now the purpose of this resolution is to protect the power of the General Court. It makes explicit some statutory authority which the executive branch has already been using for many years…The new Resolution 58 permits the governor to continue to direct the affairs of the state and now he must enforce respect for legislative mandates, powers, rights and duties.” Could the Supreme Court have found their quotation of Mr. Eaton without first reading his introduction?

Neither did the Supreme Court appear to notice Mr. Eaton’s final remarks, “Now in conclusion, I have just one more reason for passing Resolution 58. As everyone knows, state legislatures have been losing power rapidly in recent years. And this is not a theory. It is an accepted fact that progressive decline of legislative power threatens representative government. Many forces aggravate the imbalance and every time a bureaucrat overspends his budget or ignores a statute, he shows disrespect for the Legislature. Resolution 58 declares all executive departments and agencies must respect all mandates, powers and rights of the General Court and I hope as we close the 15th constitutional convention we can adopt Resolution 58 which says that whatever may happen in the other states, New Hampshire is still owned by the people and still operated by elected representatives of the people.”

In a necessary response, Rep. Greg Sorg, with others, introduced House Resolution 13, declaring the opinion of the Supreme Court to be incorrect, and urging the Senate to pass HB89. At the public hearing of HR13 on Sept. 20, all testimony was in favor of the resolution. The court failed to attend the public hearing, not even sending their usual counsel. Did the Supreme Court choose not to attend out of disrespect for the people and their elected representatives, or because they recognized that their opinion was indefensible? In any other court, the failure to attend a hearing without notice would be acquiescence.

The Constitutional Review Committee voted HR13 ought-to-pass, and sent it to the full House for the Oct. 12 session. Oct. 12, will be a defining moment in history for representative government in New Hampshire. Will the House defend the power delegated to them in the Constitution by the people, or let it be wrongfully handed over to unelected officials?

State Rep. Dan Itse, a Republican from Fremont, represents District 9 serving Fremont and Epping. He is chairman of the Constitutional Review and Statutory Recodification Committee.