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 Continue reading

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. Continue reading

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.

Jasper and Morse Roll Over for Attorney General on Dover Education Funding Lawsuit

At the beginning of the week, the New Hampshire Attorney General, Joe Foster, humiliated GOP Statehouse leadership by announcing that he would not defend an education funding law passed by the Legislature: Continue reading

Jasper’s and Morse’s Low Energy Response to Dover Education Funding Lawsuit

Yesterday, the New Hampshire Attorney General humiliated GOP legislative leadership by announcing that he would not defend an education funding law passed by the Legislature because he feels it is unconstitutional: Continue reading

Does Speaker Jasper Have a Secret Plan to Establish a State Obamacare Exchange?

The United States Supreme Court (SCOTUS) hears arguments on Wednesday (March 4) in King v. Burwell, a case that will decide whether it is legal for the Obama administration to allow Obamacare tax credits in States that did not set up state exchanges, but instead opted for federal exchanges.  I previously post about the case here, here and here.

From a previous post:

Both the individual mandate and the employer mandate are triggered by the availability of subsidies. In the case of an individual, when the cost of health insurance exceeds eight percent of income he or she cannot be fined (or taxed, if you prefer) for not purchasing health insurance. The employer mandate also is triggered by the availability of subsidies. In States where there are no subsidies, employers cannot be fined for not offering its full-time employees “suitable” insurance.

The actual language of Obamacare authorizes subsidies only for health insurance purchased on an exchange “established by the State under section 1311.” If the Supreme Court says this language means what it says, that’s a big problem for Obamacare because there are only sixteen Obamacare exchanges “established by the State.” The remaining States, including New Hampshire, opted against setting up Obamacare exchanges. Obamacare, in these thirty-four States, is purchased through exchanges established by the federal government. Without subsidies there can be no individual mandate or employer mandate in these thirty-four States, and with no individual mandate or employer mandate in these thirty-four States there can be no Obamacare.

In a previous post, I also wondered about what the New Hampshire Legislature would do in response to a ruling by SCOTUS that Obamacare subsidies are not available in States like New Hampshire:

New Hampshire is neither a federal exchange state nor a state exchange state. It is a partnership state, one of “seven ‘partnership’ states —Arkansas, Iowa, Illinois, Michigan, West Virginia, Delaware and New Hampshire — that regulate health plans and handle consumer outreach while relying on the enrollment portal.”

According to the Washington Post, the partnership states:

seem to be the likeliest candidates to establish a state-run marketplace if the Supreme Court rules against the Obama administration.

“They’re already most of the way there,” said Georgetown’s Giovannelli.

So what will Senate President Morse and House Speaker Jasper do if, as expected, the United States Supreme Court rules that Obamacare subsidies are not legal in States (like New Hampshire) that have not established state exchanges?

The New Hampshire Attorney General, on behalf of the State of New Hampshire, has joined a brief supporting the Obama administration.  Here’s a link to a post on National Review Online regarding the amicus briefs (55 in all), which will allow you to access the brief joined by Mr. Foster.

I think it is highly likely that Mr. Foster has directly or  indirectly been in communication with Speaker Jasper and Senate President Morse about what to do in response to a SCOTUS decision ruling that Obamacare subsidies are only available in States with state exchanges.  If such a discussion or discussions have taken place, which I consider likely, then I am sure that the discussion included setting up a state exchange in New Hampshire.

My sense and fear is that Speaker Jasper, who is no small government conservative, would be receptive to such a plan.