N.H. AG: Don't force me to join health care challenge

By Jessica M. Karmasek | May 24, 2011


CONCORD, N.H. (Legal Newsline) - New Hampshire Attorney General Michael Delaney, in a brief filed with the state Supreme Court, says making him join the multistate lawsuit against the federal health care law would render his office's independence "inoperative."

Earlier this month, the state Senate adopted a resolution asking the state's high court if forcing the attorney general to join the lawsuit would violate the state constitution, the Nashua Telegraph reported.

In March, the House of Represenatives voted to compel Delaney to join Florida and the 25 other states that argue the Patient Protection and Affordable Care Act's individual mandate provision violates the U.S. Constitution. The state Senate then adopted a more moderate measure -- Senate Bill 148 -- that says the attorney general "should," but doesn't have to, join the suit.

According to the Telegraph, Delaney has said if the House bill is signed into law, he would challenge it in court. Gov. John Lynch, a Democrat, has said he will veto it.

"House Bill 89 violates the separation of powers because it does not allow for the attorney general to exercise his independent, professional judgment as an attorney," Delaney wrote in his brief filed with the Court, according to the Telegraph.

Six former New Hampshire attorneys general and two dozen former prosecutors signed a memorandum in support of Delaney, the newspaper reported.

"The Legislature has the power to set policy for the state by legislative action but, without amending the constitution, it may not do so by invading the essential powers of other branches by exercising the constitutional discretion of a member of the executive branch," Former Associate Attorney General Wilbur Glahn wrote in a separate brief, according to the Telegraph.

Delaney wrote in his brief that forcing him to join the multi-state suit would inevitably change the office.

"The independence of the attorney general is not just a historical fact, it is good government," he wrote. "Reposing responsibility for the legal affairs of this state in a single constitutional officer and giving this officer the discretion to appear in legal proceedings and to control the course of litigation promotes uniformity, consistency and efficiency."

Earlier this month, the 26-state coalition urged a federal appeals court to strike down President Barack Obama's federal health care law as unconstitutional.

The attorneys general filed a 90-page legal brief with the U.S. Court of Appeals for the Eleventh Circuit. In it, they asked the appellate court to affirm an earlier decision holding that the law's individual mandate provision violates the U.S. Constitution.

In January, U.S. District Judge Roger Vinson sided with the 26 states, ruling that the individual mandate violates the Constitution and issued an order striking down the federal health care 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 U.S. Department of Justice, representing the federal government, appealed that ruling to the Eleventh Circuit Court of Appeals in Atlanta. Oral arguments are set for June 8.

The 26-state coalition includes Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.

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

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