Tag Archives: Joe Foster

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.

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

Attorney General Foster Relies on Reasoning of Korematsu to Justify his Malpractice

In 1944, the United States Supreme Court issued Korematsu vs. United States, one of the most infamous decisions of the court.  The case involved an Executive Order by President Franklin Roosevelt ordering that over 100,000 Americans of Japanese descent be rounded up and placed in detention camps. Continue reading Attorney General Foster Relies on Reasoning of Korematsu to Justify his Malpractice

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

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 HealthCare.gov 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.