Delaney: Bill violates the Constitution

Attorney general won’t take orders

By: Matthew Spolar

January 14, 2011

At a standing-room-only hearing yesterday, state Attorney General Michael Delaney told a House committee a bill ordering him to challenge the constitutionality of last year’s federal health care reform law is, in itself, unconstitutional.

The House Federal Relations and Veterans Affairs Committee is considering a bill directing Delaney to join a federal lawsuit in Florida that argues the health care overhaul’s individual mandate requiring Americans to buy health insurance exceeds Congress’s constitutional authority. The suit is backed by 20 states.

Responding to the bill, which is sponsored by six Republicans including House Majority Leader D.J. Bettencourt of Salem and Finance Committee Chairman Kenneth Weyler of Kingston, Delaney read from a prepared statement urging the committee to reject the legislation.

“For important reasons that strike at the heart of our democracy, the Legislature does not have the right to tell the attorney general what state and federal laws he or she should enforce or challenge,” Delaney said.

Delaney cited the separation of powers doctrine from the state Constitution, which reads that the legislative, executive and judicial branches “ought to be kept as separate from, and independent of, each other, as the nature of free government will admit.”

Delaney said the bill encroached on the essential functions of the executive branch. While the Legislature has the power to make laws, it cannot tell the executive branch how to enforce them, he said.

“If the attorney general can be ordered to join federal lawsuits on health care, one could logically conclude that I could be compelled to commence or withdraw criminal prosecutions by similar legislative mandate,” he said.

New Hampshire is one of five states where the attorney general is appointed by the governor. In Maine, where newly sworn-in Attorney General William Schneider says he intends to join the lawsuit, the post is elected by the Legislature. In Tennessee, the attorney general is appointed by the state Supreme Court.

In the rest of the states, the attorney general is elected by the general public.

“Given the fact that most attorneys general are partisan officials who are popularly elected in their respective states, they have little choice but to engage more directly in national politics,” Delaney said.

As a state that appoints its attorney general, New Hampshire allows the position more independence from the influence of politics, Delaney said. If the bill passes out of the Legislature, Delaney said he would challenge its legality.

“Do not make your first act as a committee an unconstitutional attempt to handcuff the independence of the attorney general,” he said.

After Delaney spoke, freshman Rep. Andrew Manuse, a Republican from Derry, addressed the committee.

“I think, as a Legislature, we may pass a law that in fact instructs the attorney general to stand up for our rights as protected under the Constitution,” he said.

In an interview afterward, Manuse said he found some of Delaney’s comments “abhorrent.”

“What he neglected to include in his testimony was the doctrine of checks and balances,” he said. “The Legislature has a check on the executive by passing laws, which he then has to enforce.”

Bettencourt said the attorney general routinely testifies for or against legislation and asks lawmakers to file legislation on his office’s behalf.

“I see no problem with the reverse, when the Legislature wants to direct him to do something on our behalf,” he said. The health care reform law “is unconstitutional, and that should concern Attorney General Delaney.”

Calls about Delaney’s comments left with the office of U.S. Sen. Kelly Ayotte, the previous attorney general who advocated repealing the health care law on the campaign trail, went unreturned yesterday.

Manuse said he felt Ayotte “probably would have joined the lawsuit without us asking her to.” Bettencourt also felt Ayotte would have been receptive to the bill.

“I believe if the Legislature sent a strong and clear message about where we stood on an issue, she would certainly take that into consideration and move forward,” he said.

House Bill 89 is scheduled to be heard by the Federal Relations and Veterans Affairs Subcommittee at 10:30 a.m. Wednesday in Room 203 of the Legislative Office Building. The full committee is set to consider recommending the bill to the House floor at 9:30 a.m. Thursday.