Random Thoughts on the Sununu Budget

Here is the transcript of Governor Sununu’s budget address.

While not mentioned in the address, the press reports that overall spending is slated to increase, over the next two years, from $11.3 billion to $12.1 billion.  That’s an increase of seven percent in Fiscal Years 2018-2019 over the two prior Fiscal Years, July, 2015 through June, 2017.

The press also reports that the increase in “general fund” and education spending is 3.5 percent.  I take that to mean that “revenues” that are classified as “General fund” and “education trust funds” (which are called “unrestricted revenues” in contrast with federal funds that can be used only as designated by Congress or Highway, Fish & Game fees, etc. that by law are restricted to certain purposes) are projected to increase by 3.5 percent and Sununu proposes to spend all of the projected increase.

Here’s a graphic showing the sources of government spending from a State website called “Transparent NH“, which contains the terms “general fund” and education trust fund”:

So the “revenues” from the”general fund” and the “education trust fund” made up about 42 percent of total revenues for the current fiscal year.

There is no corresponding graphic that separates general fund and education trust fund spending from other spending, which is why I assume that the reported 3.5 percent increase in general fund and education spending means that these revenues are projected to increase by 3.5 percent.  It would have been nice if the press explained this.

It also would have been nice if the press had explained why overall spending is slated to increase by seven percent over the biennium, given that “general fund” and “education trust fund” spending apparently account for less than half of the increase.

I suppose the press has been too busy pretending that the busloads of voters from Massachusetts should be taken literally instead of figuratively, and demolishing that straw man, to make the budget comprehensible.

Governor Sununu’s budget director, Charlie Arlinghaus, is a newspaper columnist for the Union Leader, which I have been referring to as #DyingPaper since this tweet:

Arlinghaus just wrote a column praising the budget he wrote.  I wonder how many newspaper columnists outside of New Hampshire moonlight as budget directors.

The budget is a status quo budget.  It doesn’t propose to eliminate any agencies or make any major changes in the way New Hampshire collects taxes or funds education.  That the budget is a status quo budget is evident from the Democrat Party’s muted response:

 Concord, N.H. – As a new governor, Chris Sununu was lucky enough to inherit a $160 million budget surplus … . Since 2005, Democrats have worked hard to balance the budget without sacrificing our investments in education, … . Today’s budget is largely a reflection of that hard work. While it appears he did a solid job of cutting and pasting from most of that plan in his budget proposal, he still gets an incomplete for some of the unanswered questions left from his speech today:

“… we are disheartened to see that Governor Sununu did not fully fund the state’s alcohol fund, … instead of helping freeze or lower tuition costs at the University System of New Hampshire, Chris Sununu is creating a scholarship program named after himself.”

“We also do not know from his presentation which communities will get full-day kindergarten and which ones won’t, whether he is planning to continue the New Hampshire Health Protection Program, … . We can only hope that Chris Sununu will stand up to members of his own party in supporting the programs that he’s promised to continue,” concluded Buckley.

None of the usual tripe that the budget will result in seniors being thrown out of nursing homes, massive layoffs of teachers, police, firefighters, etc., etc., etc..  Instead, the Democrats responded, mainly, by figuratively running a victory lap:  “While it appears he did a solid job of cutting and pasting from most of that plan [budgets under Democrat Governors]  in his budget proposal, …”

It probably was prudent for Sununu to propose a status quo budget.  For one thing, in New Hampshire a Governor’s term is only two years and Democrats have eroded the New Hampshire advantage incrementally since 1997.  Trying to undo twenty years in two years would probably be a bridge too far and result in the voters returning a Democrat to the corner office in 2018.  Still, it’s disappointing.

For another thing, Sununu’s dance-partners in the House, Speaker Shawn Jasper, and Senate, President Chuck Morse, are not change-agents.  They wouldn’t support a transformational budget.

To sum up, the main objective of the Sununu budget is to get reelected in 2018.  Which makes sense if you consider that two years is not enough time to turn around the ship of State, especially when your co-captains, Jasper and Morse, don’t want it turned around.

Instead of Outsourcing the Selection of Judges, Here’s How Chris Sununu Should Do It

As I discussed in the prior post, Governor Chris Sununu has announced the creation of a Judicial Selection Commission.  Unfortunately, the mission and composition of the commission indicate that Sununu has no intention of draining New Hampshire’s judicial swamp.

More particularly, the commission’s mission –which is to recommend judges based on “experience, good character and temperament” without considering judicial philosophy– and its composition –the Republican Chair was an activist-judge while the Democrat Vice-Chair helped select liberal, activist judges for prior Governor Maggie Hassan– mean the commission will not be trying to identify and recommend outstanding originalist/textualist (terms that will be discussed below) judges like the late Antonin Scalia.

I have no problem with using a commission to select judges, but to the extent that Sununu wants to appoint judicial conservatives (i.e. originalists/textualists) like Scalia to New Hampshire’s bench, Sununu’s commission represents an outsourcing of the power to nominate judges that will result in the nomination of judicial liberals.

The commission should not be “bipartisan.”  It should be nonpolitical.  Democrats by and large believe that the role of the judiciary is to effectuate social transformation -for example, inventing constitutional rights such as the right to an abortion and ignoring constitutional rights they disagree with, such as the Second Amendment- and to use empathy as a criteria for deciding cases -for example, ruling against the big, bad corporation even when the law is on the big, bad corporation’s side.  Stated more succinctly, Democrats believe the judiciary should function as a House of Lords that assists Democrats in realizing their political objectives.

I am not saying that all Democrats should be excluded or that any Republican can serve.  Rather, the criteria that a judicial selection committee should use is set forth below, and only persons who would consistently and rigorously apply this criteria and who have the capacity to apply this criteria should be on the commission.

1.  Judicial Philosophy.  Only candidates whose judicial philosophy is based on originalism and textualism should be recommended.  Simply put, a judge who is NOT an originalist/textualist is a judge who to some degree substitutes or adds his or her own policy preferences for or to what the law says.

Textualism refers to the interpretation of statutes.  A textualist interprets statutes based on the reasonable meaning of the words in the statute, without considering material outside the statutory text such as “legislative intent.”  In other words, textualism is based on the concept that we are governed by the laws a legislature actually passes, not what a judge thinks the legislature thought it was passing or what a judge thinks the legislature should have passed.

Originalism is the application of textualism to constitutional provisions.  It recognizes that constitutions by their nature cannot contain the same type of detail as statutes, so constitutional provisions should be interpreted expansively, rather than narrowly.  An example is interpreting the First Amendment to protect flag-burning because flag-burning while not technically speech has the same purpose as speech criticizing or denouncing America or some aspect of America.  However, an expansive interpretation does not mean an unmoored interpretation, such as interpreting a duty to cherish public schools to mean a judicially enforceable right to an “adequate” curriculum (adequacy to be determined ultimately by the judiciary) and to “adequate” State spending on public education (adequacy again to be determined ultimately by the judiciary).

2.  Intellectual capacity.  Being an originalist/textualist is not a mechanical exercise.  Consider the question discussed above of whether flag-burning is protected by the First Amendment.  Or whether mandating that everyone purchase a health insurance policy falls within the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  Or whether a statute providing an enhanced penalty for the use of a firearm in the commission of a crime applies to a barter involving a gun for cocaine.  In addition to having the capacity to determine the meaning of complicated statutes and the scope of constitutional provisions that may be hundreds of years old, the judge must be able to apply the law to novel or complex facts.  And the judge must be able to write an opinion that allows the other branches and the public to understand that the judge reached the correct result.

3.  Experience.  Our State Constitution was adopted in 1784 and the number of judicial decisions interpreting it is legion.  There is also a multitudinous number of statutes and regulations.  There is also common or judge-made law, such as the law of negligence.  There are also various rules of procedure.  Judicial nominees need a familiarity with this vast legal framework.

4.  Integrity.  The nominee should NOT be someone who will “grow in office,” which is a lovely euphemism for becoming a liberal, activist judge in order to please a press and a bar that is largely hostile to judges who practice originalism/textualism.  A candidate with a paper trail showing that he or she adheres to a judicial philosophy based on originalism/textualism suggests that he or she will be less likely to bow to the prevailing political winds if placed on the bench.

5.  Demeanor.  Judges must conduct themselves in a way that gives the other branches and the public confidence that the decisions they reach are based on the law and solely on the law.  For example, a judge declaring “Black Lives Matter” in open court as Judge Robart -the federal district court judge that struck down President Trump’s travel ban- did in a case in which he sided against a police union is not.

Chris Sununu Has No Intention of Draining New Hampshire’s Judicial Swamp

Governor Sununu’s announcement yesterday of a Judicial Selection Commission makes it clear that he has no intention of draining New Hampshire’s judicial swamp.  The announcement:

Not the first sentence.  The criteria for judicial selection will be “experience, good character and temperament.”  Not a mention of judicial philosophy.  In other words, Sununu is just as inclined to nominate a judicial liberal like President Obama’s nominee to fill the late Justice Scalia’s seat, Merrick Garland, as a judicial conservative like President Trump’s nominee Neil Gorsuch.   (See here for an explanation of a judicial liberal and a judicial conservative.)

The “Chair” of the commission, Chuck Douglas, is an opponent of tort reform and once sued the State claiming that the judiciary has a right to “adequate funding” (the amount of which the State’s supreme court gets to determine).  During his time on the State’s supreme court, Douglas was anything but a judicial conservative:

Without question, the member of the Court leading the new judicial federalism charge in New Hampshire was then Justice Charles G. Douglas III, the author of many of its decisions recognizing rights under our constitution unknown at the federal level. This is not surprising because Douglas, writing only months after he had been appointed to the high bench, was one of the first in the nation to jump on Brennan’s bandwagon. See Charles G. Douglas III, State Judicial Activism – The New Role for State Bills of Rights, 12 Suffolk L. Rev. 123 (1978). See also, Charles G. Douglas III, The Unique Role of State Constitutions: Raising State Issues in New Hampshire, 28 N.H.B.J. 309 (Summer, 1987).

The Vice “Chair,” Jack Sanders, is a Democrat who served on Governor Hassan’s judicial selection commission, which is like President Trump having Attorney General  Loretta Lynch advise him on nominations to the federal bench.  Sanders’ presence on the commission indicates that Sununu sees no problem with the liberal, activist judges his Democrat predecessors put on the New Hampshire bench.

The mission statement of the commission and its composition signal that Sununu has no intention of draining New Hampshire’s judicial swamp.  Instead, it will be more of the same  liberal, activist judges that countenance drive-by voting, meddle in education policy and block even modest reforms of the judiciary and legal profession.

Questions for New Hampshire’s Next Attorney General

In May of this year, Joe Foster’s term as Attorney General will end and Governor Chris Sununu will be able to nominate a successor.  Here are some questions that Sununu should ask anyone he is considering.

1.  Beginning no later than Phil McLaughlin, who was appointed Attorney General in 1997 by then Governor and now United States Senator Jeanne Shaheen, Attorney Generals in New Hampshire have claimed the power to not defend legislation that they deem unconstitutional.  A recent example is Joe Foster refusing to defend an education funding law.   Do you believe the Attorney General has such a power?

The correct answer is “no.”  The executive branch has a constitutional duty to assure “the faithful execution of the laws” (part II, article 41), which includes defending all laws challenged in court.  If the Attorney General had such a power, he or she could refuse to defend laws that the Governor deemed constitutional which would mean the Governor would not be the “supreme executive magistrate” (part II, article 41).  If the Attorney General had such a power, he would be able to exercise a litigation-veto over laws passed by the Legislature, which would give the Attorney General law-making powers contrary to part II, article 44.

2.  Attorney Generals have also claimed the power to decide to bring or join lawsuits on behalf of the State of New Hampshire, even where the Governor does not support the lawsuit.  A recent example is Foster’s announcement that he is going to join a lawsuit challenging President Trump’s Executive Order pausing entry into the United States by nationals of seven countries.  Do you believe the Attorney General has such a power?

The correct answer is “no.”   The power to decide whether to bring or join a lawsuit on behalf of the State of New Hampshire, even where the Governor does not support the lawsuit, would be contrary to part II, article 41 which makes the  Governor the State’s “supreme executive magistrate.”  Such a power also would allow the Attorney General to decline to bring or join a lawsuit when directed to by the Governor, which also would be contrary to part II, article 41.  Such a power would allow the Attorney General to set policy which may be appropriate in some States that elect Attorney Generals, but is not appropriate for New Hampshire’s appointed Attorney General.

3.  If called upon to testify before a legislative committee regarding an education funding issue, would you advise the committee that the Legislature must strictly comply with the Supreme Court’s Claremont/Londonderry decisions or would you take the position that the Claremont/Londonderry decisions were erroneous interpretations of the State Constitution and that you would vigorously defend education laws, including asking the court to overrule all or part Claremont/Londonderry if necessary?

The correct answer is “the latter.”  The Claremont/Londonderry decisions do not reflect the original understanding of part II, article 83 and are a clear violation of the separation of powers.  The Legislature can and should pass whatever laws it determines constitute appropriate education policy, as long as those laws do not conflict with the actual constitution.

Sununu Snookered by Volinsky and Foster

On Tuesday of this week, the Executive Council held a hearing on Governor Sununu’s nomination of Frank Edelblut to be Commissioner of the State Department of Education.  A vote was supposed to follow at the Council’s meeting on Wednesday.  It didn’t.

Democratic Councilor Andru Volinsky asserted that the vote would not be legally binding because State law requires as a prerequisite to the appointment of a Commissioner that the Governor consult with the entire State Board of Education, but Sununu had only talked to the Board’s Chairman.

Attorney General Joseph Foster, a Democrat, agreed with Volinsky’s interpretation.

Sununu responded by asking the Council to delay the vote to give him time to consult with the seven members of the Board of Education.

Sununu got snookered.

Here is the statute in question:

21-N:3 Commissioner; Deputy Commissioner; Directors; Compensation. –
I. The governor, after consultation with the board of education, shall appoint the commissioner and the deputy commissioner of the department of education with the consent of council. Each shall serve for a term of 4 years. The commissioner and the deputy commissioner may succeed himself or herself, if reappointed. The commissioner and deputy commissioner shall be qualified to hold their positions by reason of education and experience.

The statute says nothing about the form of the consultation.  It leaves it up to the Governor whether to consult with the Board as a whole, with all of the members individually, or with a representative of the Board .  Nor does the statute speak to the substance of the consultation.  It does not require the Governor to submit names to the Board, or to nominate only individuals approved by the Board.  Indeed, the statute does not require the Governor to place any weight at all on any input he may get from the Board.  The language regarding consultation is hortatory.

I am sure that, nonetheless, the Attorney General told the Governor that this hortatory language would allow someone to challenge Edelblut’s appointment in court if the vote took place as planned on Wednesday.


To have standing to challenge Edelblut’s appointment in court one would have to demonstrate a concrete personal injury.  An interest that proper procedures were followed in appointing Edelblut is not a concrete personal injury that would confer standing, but rather is a general interest shared by every citizen of New Hampshire that is not sufficient to confer standing.  From the 2014 case of Duncan vs. State of New Hampshire:

The text of the State Constitution nowhere suggests that the framers intended the judiciary to exercise a role of general superintendence over the whole of the State’s government — to function, in effect, as a body akin to the council of revision proposed at the Federal Convention of 1787. See J. Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 25 (Gaillard Hunt & James Brown Scott, eds., int’l ed. 1920) (proposing a “Council of revision,” comprised of “the Executive and a convenient number of the National Judiciary,” to “examine every act of the National Legislature”). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws)” is the function of the legislative and executive branches. Lujan, 504 U.S. at 576, 112 S.Ct. 2130; see Merrill, 1 N.H. at 204 (“legislative power” is intended to “regulate publick concerns and to `make laws’ for the benefit and welfare of the state”). “It is the province of judges to determine what is the law upon existing cases” and “to decide private disputes between or concerning persons.” Merrill, 1 N.H. at 204 (quotation omitted); see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803) (“The province of the court is, solely, to decide on the rights of individuals.”).

The Executive Council, not the courts, is the check on the Governor’s power to appoint the Education Commissioner.  In other words, Volinsky’s proper recourse was to try to convince his fellow Councilors to reject Edelblut on the grounds that proper procedure was not followed, more particularly that the Governor did not obtain input from the State Board of Education that the Governor is not required to follow.  Which explains why Volinsky and Foster cooked up the bogus legal argument that the vote was not legally binding because Sununu had not obtained sufficient input from the State Board.

Attorney General Foster was not giving Sununu objective legal advice, but rather was helping Volinsky play the role of obstructionist.  In short, Sununu got snookered.

New Hampshire Attorney General Foster Opposition to Trump EO Based on Falsehoods

Here is New Hampshire Attorney General Joe Foster’s announcement that he opposes President’s Trump Executive Order on foreign entry into the United States:

So according to Foster, Trump’s Executive Order violates the constitution by excluding foreigners from entering the United States based on religion.

But here are the relevant portions of Trump’s Executive Order:

(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

There is no mention of religion in the Executive Order.  Rather, entry by the nationals of seven countries identified by the Obama administration as hotbeds of terrorism -Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen- is suspended for 90 days, to allow the development of heightened vetting procedures.

The affected nations are Muslim-majority countries, but other Muslim-majority countries -Egypt, Saudi Arabia, Indonesia, for example- are not on the list.  Moreover, the Executive Order applies equally to non-Muslims.

In short, there is no targeting by religion.

President Trump Sets a High Bar for Governor Sununu

President Trump has announced that on Thursday of next week he will name his pick to replace the late Antonin Scalia on the United States Supreme Court.

It appears that Trump has narrowed his choice to two or three finalists:

“I’ll be making my decision this week, we’ll be announcing next week,” Trump said, after meeting Tuesday with Senate leaders from both parties to discuss the vacancy. “We’ll pick a truly great Supreme Court justice.”

This, as sources close to the selection process tell Fox News the list of possible candidates is now down to three names, all of them federal appeals court judges: Judge William Pryor in Alabama, Judge Neil Gorsuch in Colorado, and Judge Thomas Hardiman in Pennsylvania.

All three of these judges are legal superstars.  For example, from Jonathan Adler at the Volokh Conspiracy:

All three of the reported finalists are highly qualified, conservative justices. All would make for strong Supreme Court justices, … 

Any of these choices would set a high bar for Chris Sununu when his turn comes in July of this year and October of next year to nominate justices to the New Hampshire Supreme Court.  Sununu’s nominations will be a large part of determining his legacy.

Sununu is at a significant disadvantage when compared to Trump, however, when it comes to picking conservative justices.

First, let’s clarify that a judicial conservative is a completely different animal from a judicial liberal and from a political conservative.  A  judicial liberal is a judge who whenever possible will reach a liberal political result.  Essentially, the judicial liberal decides what the “right result” is and then strives to find some plausible way to reason backwards to that result.

A political conservative describes someone’s political leanings, not his or her philosophy of judging.  For example, Justice Scalia, while very politically conservative, reached liberal results in many cases.  For example, ruling that burning the American flag was constitutionally protected free speech.  What made Scalia a judicial conservative was his philosophy of judging – an originalist when it came to interpreting the constitution (giving constitutional provisions the public meaning they had at the time of their adoption) and a textualist when it came to interpreting statutes (discerning legislative intent from the words of the statute, not from extra-textual sources like “legislative history”).

The three judges on Trump’s short-list are all appeals court judges with extensive paper-trails, including judicial opinions, articles and lectures.  These paper-trails allow Trump’s team to determine the judicial philosophy, and the reasoning and writing abilities of the judges.

In contrast, Sununu doesn’t have a similar “bench” from which to draw.  New Hampshire does not have an intermediate appellate court.  Rather, appeals are directly from the trial courts to the State supreme court.  The majority of the work of a trial court judge tells us very little about the judge’s judicial philosophy and whether the judge is otherwise qualified for the supreme court.  Thus, if Sununu wants to tap an lower court judge to fill the upcoming vacancies, he will not have the benefit of the paper trail that Trump has had in filling the Scalia seat.

Moreover, with the exception of two years, 2003-2004, the Democrats have held the corner office and have been appointing judges for the past twenty years.  The three judges on Trump’s short-list, in contrast, were all appointed by President George W. Bush.  It’s safe to say that the Democrat Governors who preceded Sununu were not looking to appoint judicial conservatives to the bench.

So Sununu is going to have to look outside the bench if he wants to put judicial conservatives on the New Hampshire Supreme Court.  It is imperative that he understand that a political conservative is not necessarily a judicial conservative.  And that a nominee who does not present himself or herself as a judicial conservative, i.e. an originalist and a textualist, and is able to explain why it is important that a judge be a judicial conservative will, once exposed to the rarified air in Concord, begin moving to the left.

The ideal candidate would be someone with a paper trail.  So Sununu will not have to wonder if the candidate is just talking the talk to get nominated, but will not walk the walk if confirmed.

No more Souters.

New Hampshire Republicans Living Up To Sobriquet “Stupid Party”

At the beginning of 2013, in response to the disappointing election results in 2012, then Arkansas Governor Bobby Jindal called on the Republican Party to “stop being the stupid party”.

Apparently some Republicans in New Hampshire did not get the call:

Now DiStaso is a hack who carries water for the Democrats, but why did the Republicans give him the opportunity to help the Democrats embarrass the new GOP Governor, the first GOP Governor in New Hampshire since 2003? Continue reading New Hampshire Republicans Living Up To Sobriquet “Stupid Party”

Sununu’s Plan to Replace Obamacare Just More of the Same

From the Associated Press:

CONCORD, N.H. (AP) – New Hampshire Gov. Chris Sununu is asking Congress to give states as much flexibility as possible to design their own health care systems as part of the federal effort to repeal and replace the Affordable Care Act.

“We urge Congress to untie the hands of the States,” the Republican governor wrote in a Wednesday letter to U.S. Senate Majority Leader Mitch McConnell. “Let us have the flexibility to design a New Hampshire system for New Hampshire citizens.”

I attempted to locate the letter, but it is nowhere to be found on Sununu’s official government website.  (So much for New Hampshire having a transparent government).

So based on what the Associated Press has reported, I have to say that Sununu’s plan to replace Obamacare is just more of the same.

In other words, Sununu’s plan, again based on the Associated Press reporting, is to replace Obamacare with Sununucare.  More particularly “design[ing] a New Hampshire system for New Hampshire citizens” means shifting powers from the federal bureaucrats and regulators to State bureaucrats and regulators. Continue reading Sununu’s Plan to Replace Obamacare Just More of the Same