N.H. AG can't be pushed into health care challenge

Jessica M. Karmasek Jun. 16, 2011, 9:47am


CONCORD, N.H. (Legal Newsline) - The New Hampshire Supreme Court ruled Wednesday that state lawmakers cannot order Attorney General Michael Delaney to join the multistate lawsuit against President Barack Obama's federal health care law.

House Bill 89, which was passed by the state House of Representatives and is pending before the state Senate, would require the attorney general to join the 26 other states as a plaintiff in the lawsuit.

At issue is the health care law's individual mandate requiring that all Americans purchase health insurance or face a penalty. The states argue that the mandate violates the U.S. Constitution.

In January, U.S. District Judge Roger Vinson sided with the states, ruling that the individual mandate violates the Constitution and issued an order striking down the federal law.

Vinson said he voided the entire legislation in the multistate lawsuit because the mandate is too integral a part to be separated. He called it "a difficult decision to reach."

"If Congress intends to implement health care reform -- and there would appear to be widespread agreement across the political spectrum that reform is needed -- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not," he wrote.

"It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."

The New Hampshire Senate, in a resolution filed with the state's high court May 5, asks whether requiring the attorney general to join the suit violates the state constitution. Under the House's bill, the attorney general would have to join the suit no later than July 1.

The Senate also asks if the Legislature has that kind of authority.

Delaney, in a brief filed with the Court last month, argued that making him join the lawsuit would render his office's independence "inoperative" and inevitably change the office.

The Court, in its 13-page opinion, said the bill violates the separation of powers doctrine set forth in Part I, Article 37 of the New Hampshire Constitution.

It also found that lawmakers do not have the authority to make such a mandate.

The Court points to Part II, Article 5 of the constitution. The plain language, it said, authorizes the Legislature to set the duties of civil officers only to the extent that doing so does not contravene the constitution.

The executive branch, it explained, is responsible for initiating civil actions on behalf of the State.

"HB 89 would usurp this essential power because it would divest the executive branch entirely of its authority to decide whether to initiate a particular civil action on the part of the State," the Court wrote. "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."

While the Legislature is responsible for setting forth the duties of "the several civil and military officers" of the state, it may not do so in a way that usurps one of the executive branch's essential powers, the Court said.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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