Honorable Members of N.H. House Committee on Executive Departments and Administration,
Today I present testimony in favor of HB 275, “an act relative to the governor’s power to initiate a state of emergency and various emergency powers,” a bill I believe would change state law to clarify executive power during a State of Emergency to preclude the overreach we have seen over the past year. Importantly, there are provisions that I support in HB 414, HB 417 and HB 433, which are before your committee, and HB 277, HB 280, HB 325, HB 559 and HB 389, which are before the N.H. House Committee on Legislative Administration, which also seek to implement additional checks on executive power. I trust you will take the best ideas from all of these bills and amend one or two of them to present the best-case reform of our emergency statutes for adoption. I also support HCR 2, which would end the current “State of Emergency.” I once believed this dystopian nightmare would be over in mid April of 2020, and the fact of the matter is that I honestly can’t believe I’m even presenting this testimony to you today, as I never would have imagined an abuse of power of this magnitude could be committed in our free Republic, or even under current law.
Part 1, Article 29 of the state Constitution makes it clear that only the Legislature may suspend or enact laws in New Hampshire, and Part 2, Article 5 makes it clear that these same laws may not be “repugnant to the Constitution.” Arguably, RSA 4:45 as written should align with these principles, and in section III(e), it should be clear that the governor’s authority “to perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population” does not give him or her authority to suspend law, make new law, or suspend the Constitution, but during this protracted nightmare, the governor has done all three things. In fact, when it comes to the institution of “emergency orders” written under the supposed authority of this section, the chief executive and his departments have written new policy, enforced the same policy, and created an adjudication process for the same policy—effectively giving the executive branch legislative, executive and judicial functions. This directly violates Part 1, Article 37 in the state Constitution, which states that the “Legislative, Executive, and Judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit.” In other words, a State of Emergency does not erase or minimize the Legislative or Judicial branches, and yet, in practice, these other two branches have been largely missing in action.
Granted, the Legislature could at any time vote to end the State of Emergency under RSA 4:45, and I argue that it should have back in April 2020 and at any point since it was clear that there would be no catastrophic curve to flatten and we were simply dealing with a really bad virus that any free people could handle with commonly known hygiene techniques and a little “guidance,” and I mean “guidance,” from state Health officials. However, the word “guidance” has morphed into “law” and the Legislature has been sidelined in doing its Constitutional duty, and so far has not taken back its power. I hope that changes now.
Importantly, one reason the Legislature has struggled to end the State of Emergency is precisely because the Executive Branch has set up a new government run by itself under the color of law, and ending the State of Emergency would unravel that new government. This is what all of the bills I’ve mentioned, once they become law, would prevent from ever happening again. I like HB 275’s provisions and have chosen to speak on this bill because it so eloquently and firmly plants the authority for extending a State of Emergency into the hands of the Legislature, where it belongs, and it preserves autonomy in the hands of the people to govern themselves, even in the midst of chaos, because in America we believe the people know best how to manage their own lives and the lives of those around them. While the bill provides for contingency plans for true emergencies during which the Legislature cannot meet, it also provides strict penalties to the government during this time period so that the emergency cannot be extended beyond its reasonable life.
The governor ought to have the right to declare a State of Emergency; after all, he or she is managing the day-to-day operations of the state and will have access to the most up-to-date information. However, the governor ought to be checked before extending a State of Emergency to prevent abuse of power. At no point may that same governor employ his or her state of emergency to enact new laws or suspend them, which the HB 275 section III(e) addition “under the law” clarifies. Language in section III(a) ensures there is no confusion. Specifically, the language clarifies that the governor may use current laws to suspend rules or regulations written by his or her departments to adjust to an emergency situation and potentially reallocate resources between departments as the law allows, but by no means may the executive make up new rules or regulations or suspend laws without going through the Legislative process and he or she may NEVER suspend Constitutional rights. Not even the Legislature can do that.
We elect a Legislature of 400 men and women precisely because we disagree on how best to manage the state, and it is in that disagreement and compromise that we come up with sound policy that is suitable for the most people. Ideally, that policy creates a “rule of law” that governs everyone equally, so that even the minority is protected by it. As this process has been thwarted over the past year, we have seen one man and his team of executives craft policy that may or many not take everything into consideration, and whether the policy has been sound or not, it has not been properly vetted under the Constitutional system that we set up to make sure that it is. We have to stop this from continuing and we have to prevent this from happening again. Thus, the governor should not have the authority to extend a state of emergency—not even once. After 21 days, the Legislature, if not the whole state, should have the ability to get up to speed on what is actually happening and make an informed judgement as to whether the emergency persists. On top of enabling this, the bill also provides metrics for measuring what the state of emergency actually consists of and conditions that would be needed to end it, which creates a bright line for policy makers to use as they judge whether or not to continue it. If the whole Legislature can’t meet, because the emergency is that bad, then the Executive Council unanimously may chose to continue the State of Emergency to enable emergency measures to continue. To ensure that it is truly impossible for the Legislature to meet under this provision, the poison pill is added—removing tax revenue from the state and from cities and towns, which will motivate the Legislature to get back together and do the job it was elected to do for the people of the state as soon as conceivably possible. Ideally, the Legislature should be making policy decisions at all times, and the executive ought to be enforcing those policies. A situation that lasts longer than 42 days cannot possibly still be an emergency that requires abandonment of the Constitutional process and the Republic that was set up to defend the people’s ability to govern themselves, even in the worst of times.
The idea behind the changes proposed by HB 275 are that the people should always be in charge of their government, through their Legislature, and they also ought to keep autonomy over their own lives, property and businesses. I urge you to pass it, though I acknowledge that many of the great ideas in the other bills before you also present solutions to the problems I’ve highlighted, and I do trust you will amend one or two of these bills to incorporate the best ideas to strengthen the Legislature’s role in handling future States of Emergency into a bill that becomes law.
Hon. Andrew J. Manuse