Judge hosts hearing in lawsuit over Sununu's COVID-19 spending authority

Gov. Chris Sununu is shown here at an April 2020 press conference related to the state’s handling of COVID-19. Fourteen bills in the 2021 legislative pipeline would alter the emergency powers of the governor or his chief subordinates, such as the commissioner of health and human services.

CONCORD — After taking unprecedented steps to cope with the pandemic, Gov. Chris Sununu now faces a multi-front campaign to check or weaken the governor’s power to deal with future emergencies.

Much of that pushback is coming from Sununu’s own party.

Fourteen bills in the 2021 legislative pipeline would alter the emergency powers of the governor or his chief subordinates, such as the commissioner of health and human services.

All of them have Republican sponsors, which could portend better for their passage now that the GOP has control of both houses of the Legislature.

Eleven of the bills’ 14 authors of these bills have resisted wearing masks at some point.

In mid-November, Sununu issued an executive order requiring face coverings in public spaces — indoors or out — when social distancing is not possible. Many businesses require them at all times.

Sununu’s performance during COVID-19 has won high marks in independent polls. The latest one from the UNH Survey Center reported that 70% of residents approve of his handling of the crisis, compared to 27% who disapprove.

Unquestionably, however, many weary citizens believe Sununu has overreached.

“After 10 months, we the people are still not considered responsible enough to make decisions about our own health,” said Julie Tucker, a longtime resident of Rye during a recent House hearing. “I believe these emergency orders have brought significant financial and other harm to our state and there is no evidence they have done anything to reduce the spread of COVID-19.”

Wendy Richardson, who owns a small business in Conway, said, “These ridiculous mandates are not common sense. They don’t align with science.”

Rep. Andrew Prout, R-Hudson and sponsor of four of the bills, said the goal is to soberly reflect on a better process in the future.

He said that’s what he sought with his bill (HB 63) to refund all fines and to annul criminal convictions for violations of pandemic-related regulations.

“I think a lot of them feel all of this came at them very fast, they didn’t have time to prepare for it, and many businesses are liking this bill because it’s a safety net and they can move on once this pandemic is past,” Prout said.

In the first test last week, the House Criminal Justice and Public Safety Committee, recommended passage of Prout’s bill by an 11-10 vote.

Michael Ettlinger, founding director of the Carsey School for Public Policy at UNH, said this battle over emergency powers is being fought in statehouses across the country.

“The system is checks and balances. You do want the Legislature involved whenever possible, but there is a reason you have emergency power,” Ettlinger said during an interview. “There are times when something comes on suddenly, or the situation is so volatile that it’s not feasible to involve the Legislature in a timely manner.”

Sununu said he is open to cementing a future role for lawmakers. His office is working on its own bill to carve into state law some lasting features of these emergency orders while repealing the rest once the pandemic is over.

But Sununu won’t move off his opinion that every chief executive dealing with a public health crisis needs some running room.

“You’re not going to get results if you don’t. We would have been at the bottom of the barrel if we had to bring every last decision through the Legislature,” Sununu said.

“You can’t predict every situation in the future. And you can’t have every decision go through the Legislature. That’s not a smart thing to do.”

Lawmakers: Share power

Most of these bills beef up legislative powers in future emergencies. For example, one of Prout’s bills would let lawmakers erase any specific emergency order by majority vote (HB 280).

Rep. Keith Ammon, R-New Boston, has the most laser-focused proposal (HB 542), which would block any governor from imposing a ban or limit on in-person gatherings at places of worship.

First-term Rep. Melissa Blasek, R-Merrimack, has written the one that goes the furthest, immediately suspending the COVID-19 state of emergency (HCR 2).

Despite the criticism and concerns about emergency powers, the state has the fourth-toughest checks on the governor, according to a new report from the Maine Policy Project, a free-market think tank.

Only Kansas, South Carolina and Minnesota put more shackles on a chief executive during an emergency, said Jacob Posik, director of communications.

“There is nothing by law that allows this person to dictate public policy in perpetuity. Checks and balances exist everywhere in our government. We don’t want any single branch to become too powerful,” Posik said.

Unlike most states, New Hampshire gives the Legislature as well as the governor the power to declare or terminate an emergency declaration.

New Hampshire’s 21-day length for an order also is shorter than most.

Group: NH could do more

The Maine Policy Institute contends New Hampshire could and should do more.

The three states that restrict the governor more than New Hampshire all mandate that an initial emergency order be confirmed by the Legislature within a short, fixed time frame.

“The Legislature should have the authority to rescind or eliminate any orders of the governor,” Posik said. “It is really easy to get to that point where the people feel they are being overpowered by their government.”

Prout has filed a bill to require the Legislature or Executive Council to vote to renew any emergency order after the first 21-day declaration (HB 275).

Nationwide, Vermont’s governor had the fewest checks and balances on him, according to the report. Further, any order dealing with energy and environment remains in place for six more months.

Maine was in the middle of the pack at 23rd.

“Our Legislature has not done anything since March 20. They turned the keys over to the kingdom,” Posik said.

Daniel Bromberg, a UNH political science professor, reviewed the bills and concluded many went too far. He said the current state of the law strikes the right balance.

“If every decision has to run through this, that clearly doesn’t make sense. Otherwise, you wouldn’t need an emergency order,” Bromberg said. “I get the desire to have oversight, but we have those laws on the books. They can hold this governor accountable if they want to.”

A House panel has already embraced by a vote of 19-2 a bill giving a health care oversight committee the power to undo an emergency order from the Health and Human Services commissioner by a super-majority vote (HB 187).

Many lawmakers protested last April when HHS temporarily banned giving hydroxychloroquine to prevent COVID-19 because officials were worried a run on the drug would curtail its availability for its treatment of other conditions.

“I am not convinced the Legislature meant to give to the commissioner the prescribing of a drug that providers meant to deliver to patients,” said Rep. William Marsh, R-Wolfeboro.

Democratic legislative leaders took Sununu to court last year over his executive powers. A superior court judge upheld the governor’s authority.

Gov: ‘They all went home’

Sununu said he sought the advice of lawmakers after legislative leaders shut down the State House last April.

“I voluntarily said, let’s create a Legislative Advisory Board, because they all went home,” Sununu said.

“I mean, the Legislature said, ‘We’re out, we’re done,’ and they disappeared out of the State House.”

If any bills unacceptable to Sununu slip through the House, his safety valve could be the GOP-led Senate.

Not a single senator has signed onto any of them.

Ironically, Sununu also has support from Democrats, who quibbled with the specifics but broadly endorsed many of Sununu’s moves.

“My biggest complaint is I think the orders should have been even tougher,” said Rep. Timothy Horrigan, D-Durham.

A prospect for consensus comes from Rep. Timothy Lang, R-Sanbornton, whom Sununu named to his Economic Reopening Task Force.

His plan (HB 389) would create a permanent, 10-person Legislative Executive Order Oversight Committee that would by majority vote have to review and renew every 21-day emergency. If that fails, a governor could seek permission from a special session of the Legislature.

“This allows us to work together during a time of crisis to do the people’s business and recognize that the Legislature is a coequal branch,” Lang said.

Before bringing the bill in, Lang said he shared it with Sununu’s office.

“They seem to be tentatively supportive, and obviously, that’s a good thing,” Lang said.

An earlier version of this story incorrectly identified the Maine Policy Institute.