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Tuesday, May 24, 2011

Legislature, AG spar over joining federal health care suit

CONCORD – Attorney General Michael Delaney and lawyers for the New Hampshire Legislature jousted before the Supreme Court over whether lawmakers can force the state’s top prosecutor to join the lawsuit against federal health care law.

The House of Representatives voted by a 70 percent majority (HB 89) in March to compel Delaney to sign on with Florida and 25 other states that contend the individual mandate violates the U.S. Constitution.

The state Senate adopted more moderate legislation (SB 148), that says the AG “should,” but does not have to join the suit.

Delaney contends a mandate violates the separation of powers clause and other parts of the state constitution.

If signed into law, Delaney said he would challenge the action in court.

Gov. John Lynch has threatened to veto the lawsuit mandate if it reaches his desk.

Earlier this month, the state Senate also adopted a resolution asking the Supreme Court if making Delaney join the suit would violate Part 1, Article 37 of the state constitution.

In a lengthy brief, Delaney said making him join the suit would render inoperative the independence of the attorney general.

“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 an unusual move, six former attorneys general, including four Republicans, and two dozen former prosecutors signed a memorandum supporting Delaney’s view.

Former Associate Attorney General Wilbur Glahn wrote that brief.

“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,” Glahn wrote.

House legal counsel Ed Mosca said the federal health care law is not a legal dispute but one for elected officials to fight.

“Finally, it cannot be overemphasized that the decision whether to join the states’ lawsuit against Obamacare is a political decision, not a legal decision,” Mosca countered.

“Joining as a plaintiff in the states’ lawsuit would send a loud and clear message to the other states, to Congress and to the federal courts that New Hampshire opposes Obamacare.”

Senate legal counsel Rick Lehmann in his own brief for the Senate agreed with the House.

“House Bill 89 does not usurp an essential function of the attorney general,” Lehmann wrote. “To the contrary, a claim by the attorney general that he should not have to follow the law usurps the policy-making role of the Legislature and the governor.”

An appointee and close friend of Lynch, Delaney took on House Speaker William O’Brien, R-Mont Vernon, who made opposition to Obama’s health care law a major, partisan rallying cry.

“New Hampshire’s Constitution unequivocally gives the Legislature the role of setting policy and we firmly expect that the Supreme Court will reinforce that long-standing provision,” O’Brien said.

“All New Hampshire citizens should hope that the court decides their elected representatives and not an unelected, appointed official sets the policies of our state.”

House Majority Leader D.J. Bettencourt said the will of the state’s public is to oppose the health care law.

“A significant majority of Americans and states have rejected the failed policy of the Democrats and Obamacare,” Bettencourt said.

“The people spoke clearly that they want this monstrosity to end now.”

Among NH adults, 51 percent said Congress should repeal the law while 41 percent wanted it to remain, according to a February Granite State poll done for WMUR. The rest were undecided. But Delaney added that losing this lawsuit would change forever what the AG stands for.

“The independence of the attorney general is not just a historical fact, it is good government,” Delaney concluded.

“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.”

Kevin Landrigan can be reached at 321-7040 or klandrigan@nashuatelegraph.com.