New Hampshire Court: Lawmakers can't order AG to join health suit Justices unanimously rule that House-passed bill is unconstitutional

By Kathy McCormack

Associated Press

CONCORD, N.H. (AP) -- New Hampshire's Supreme Court, in a unanimous opinion Wednesday, said that lawmakers don't have the constitutional power to order the attorney general to join a lawsuit over President Barack Obama's health care overhaul.

The justices concluded that a House-passed bill that ordered Attorney General Michael Delaney to join a lawsuit against the federal health care reform law is unconstitutional.

The bill, "which removes entirely from the executive branch the decision as to whether to join the state as a party to litigation, would usurp the executive branch's power to execute and enforce the law," the court wrote. Therefore, the bill passed by the House "violates the separation of powers clause and is constitutional."

The Senate had passed a similar bill that recommended that Delaney join the suit, not mandate it. The Senate asked the state Supreme Court last month if lawmakers have the constitutional power to order the attorney general to join other states suing to block the health care act.

Delaney had argued that the independence of his office is historical fact and good government. He also submitted a memorandum supporting his position by former attorneys general.

A spokeswoman for House Speaker William O'Brien said he was out of state and in meetings Wednesday, so he was not immediately available to comment.

At least 26 states, a coalition of small businesses and private individuals have challenged the law, arguing it exceeds the federal government's powers. The states argue that the correct way to ensure that people pay for medical services is by imposing restrictions or penalties on those who attempt to use health care services without insurance.

Three judges on the 11th Circuit Court of Appeals panel in Atlanta heard a challenge to the law last week after a federal judge in Florida struck it down. Federal appeals courts in Cincinnati and Richmond also have heard arguments challenging the law. Lawyers on both sides agree the case is headed for the U.S. Supreme Court.

In New Hampshire, the Senate asked the state Supreme Court whether the requirement that attorney general move to have the state join the lawsuit as a plaintiff violates the constitution; whether requiring the attorney general to join the suit would fall within the broad grant of authority to the Legislature as set forth in the state Constitution; and whether the bill as adopted by the House violates any other provision of the state constitution.

The justices answered yes to the first question and no to the second. It declined to answer the third question.

"The executive branch, not the legislative branch, is empowered to protect the interests of the people by taking care that the laws are faithfully executed," the court wrote. The justices added, "It is the executive, not the legislative branch, in which the constitution vests the 'supreme executive' authority to determine whether it is in the public interest to litigate a particular matter."

Lawmakers had argued that the bill amounted to nothing more than exercise of the Legislature's essential powers, that is "to set forth the several duties, powers, and limits of the several civil and military officers of this state ... so as the same be not repugnant or contrary to this constitution," as stated in the state document. But the court noted that such power is constrained by other constitutional provisions.

Published: Thu, Jun 16, 2011

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