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.