By Ian Huyett

At least on paper, Governor Chris Sununu is currently one of the most powerful executives in the United States. In litigation against the Governor’s COVID-19 orders, the New Hampshire Attorney General’s office has successfully argued that—in a time of emergency—Sununu has the power to suspend civil liberties, including fundamental constitutional rights.

Looking around New Hampshire, you might not guess that our constitutional rights have been suspended. The Governor is not targeting churches, confiscating guns, or searching our homes without warrants. But this does not mean that we have enforceable legal rights. Under the legal theory of our Attorney General’s office, this only means that Governor Sununu has mercifully chosen not to deploy the full range of his powers. The next governor might not be so benevolent.

This danger is of great concern to us at Cornerstone, as our vision is a New Hampshire where religious freedom flourishes. The idea that constitutional rights can be “suspended” in a time of emergency endangers not only religious freedom but all the other freedoms enshrined by our state and federal constitutions.

This issue is especially important now that New Hampshire’s Attorney General, Gordon MacDonald, has just been re-nominated to the post of Chief Justice of the Supreme Court of New Hampshire. The architect of this “suspend civil liberties” theory appears to be MacDonald’s subordinate, Solicitor General Daniel E. Will: MacDonald did not personally brief or argue these cases. Yet the Solicitor General nonetheless made the argument for MacDonald’s office and under his authority. Although it is possible, it seems unlikely that Will did so without MacDonald’s approval or knowledge.

One option for shoring up our constitutional rights against executive overreach is legislative action. As our State Senators are standing firmly by the Governor, however, our options for protecting our rights may be dwindling. If MacDonald were to rule from the bench that the Governor can suspend constitutional rights, we could potentially find ourselves without any avenue—short of a constitutional amendment—for protecting our rights from sweeping emergency powers.

Given the grave importance of this issue, citizens should call upon the Executive Council to question MacDonald about his views on the suspension of constitutional rights. Does MacDonald see constitutional rights as fixed, or does he believe they can be simply set aside by the exigencies of executive power? This does not mean asking MacDonald how he will decide some particular case. It simply means asking MacDonald to state that he will always apply the very rights that he will soon swear to uphold.

 

How did we get here?

 

In March 2020, Governor Chris Sununu declared a state of emergency due to COVID-19. Under New Hampshire law, this act gave the Governor the power to issue rules called “emergency orders.” Like other governors around the country, Sununu then issued a variety of emergency orders addressing the pandemic.

Days later, a group of plaintiffs launched New Hampshire’s first court case challenging Sununu’s orders: Binford, et. al. v. Sununu. The Binford plaintiffs asked a state trial court to hold that the governor’s orders violated their constitutional rights.

The Binford plaintiffs probably had no business winning their case— their complaint was largely devoid of legal arguments or supporting case law. Solicitor General Daniel Will, who argued the case for the Attorney General’s office, could have easily won the case by arguing that Sununu’s actions passed a normal constitutional analysis. Instead, Will disturbingly asked the Court to hold that civil liberties are suspended due to the state of emergency. In the Court’s words, “the State contends [that] during a state of emergency, executives are granted broad latitude to suspend civil liberties.”

In a detailed opinion letter, the Superior Court then agreed with Will by concluding that civil liberties in New Hampshire are suspended. The Court said that it was persuaded by a nonbinding federal court ruling from 1996, and quoted the ruling: “In an emergency situation, fundamental rights such as the right of travel and free speech may be… suspended.” The Superior Court therefore found that “the Governor may suspend… constitutional rights during a state of emergency.”

Although the Court also decided that the Governor’s orders were constitutional, it explained that it was doing so only “for the purpose of establishing a complete record” and not because constitutional analysis was necessary. In subsequent emergency orders, Governor Sununu has cited the opinion letter in Binford as providing a legal basis for his actions.

 

What does a “suspension” of constitutional rights really mean?

 

It is important to clearly understand what the Attorney General’s office and the Binford Court mean by “suspend constitutional rights.” This phrase has two components: “constitutional rights” and “suspend.” Let’s consider each one in turn.

First, what kind of rights is the Binford Court talking about? Neither the Solicitor General nor the Superior Court suggested that Granite Staters have any rights which are not subject to “suspension” in an emergency. In fact, as we’ve already seen, the Court adopted a case which stated that even “fundamental rights such as the right of travel and free speech” may be suspended.

In other words, when we say that “constitutional rights” or “civil liberties” are suspended, we are talking about all the protections in the federal and state constitutions against fines, intrusions, arrests, and so on.

Secondly, what exactly does “suspension” mean? According to Binford, if someone brings any legal challenge against an executive order, New Hampshire courts do not need to ask whether that order passes constitutional scrutiny. Instead, the court’s only job is to ask “whether the executive’s actions were taken in good faith and whether there is some factual basis for the decision.”

In legal jargon, the term “good faith” does not mean that an action is good or just. According to one legal definition, good faith is “an intangible and abstract quality with no technical meaning.” In general, though, a person is usually said to be acting in “good faith” if he is honest in his motives.

To give an example, imagine that a governor ordered that anyone who organizes a protest against the COVID-19 lockdown must be arrested and imprisoned without bail. This could easily be a “good faith” attempt to help contain the virus.

In other words: do not be confused into thinking the word “suspend” has some fancy technical meaning. At the end of the day, “suspend” means exactly what it sounds like. If a governor’s actions are honest and are connected to the state of emergency, constitutional rights have no effect. That includes the right to free speech, to bear arms, to be tried by a jury, and so on.

New Hampshire law does contain one check on the governor’s emergency powers: at any time, the legislature may vote to end the state of emergency. But this poses a serious problem. New Hampshire could one day find itself with a governor who is an abusive tyrant at the same time as a genuine emergency exists. This is especially disturbing given that our culture has now redefined the word “emergency” to encompass an endless “new normal” that could drag on for months or years.

If this happened, our state legislators could have to choose between accepting a dictatorship or cutting off medical supplies and other needed relief. This is exactly the kind of dilemma that our constitutional system of government was carefully constructed to avoid.

 

Does the Governor need these powers to manage our current crisis?

 

By claiming the power to suspend basic rights, the Governor and the Attorney General’s office have promoted an extreme theory that is not widely accepted in American jurisprudence. In 1934, for instance, the United States Supreme Court said that “even the war power does not remove constitutional limitations safeguarding essential liberties.”

The Supreme Court has also never held that constitutional rights may be suspended due to a pandemic. After Binford was decided, the United States Supreme Court issued its decision in Diocese of Brooklyn v. Cuomo, affirming that “even in a pandemic, the Constitution cannot be put away and forgotten.”

In fact, throughout the course of the pandemic, many other governors have had to manage COVID-19 without the quasi-monarchical powers that our Attorney General’s office has claimed for Governor Sununu. In May 2020, the federal district court in Maine decided Bayley’s Campground Inc. v. Mills, in which a group of plaintiffs brought a constitutional challenge against Governor Janet Mills. Although the Court found against the plaintiffs, it explicitly rejected the idea that traditional tiers of constitutional scrutiny do not apply during a pandemic.

Bayley’s was decided almost six months ago. If Governor Sununu truly needed unlimited powers to effectively combat COVID-19, then we would expect Maine to have long ago collapsed into chaos and to resemble Mad Max. Instead, as of the time of this writing, Maine’s case count per 100,000 residents is lower than New Hampshire’s.

While I do not support the suspension of our Constitution, I do think New Hampshire’s relatively low case count is due—in significant part—to the proactive steps Sununu took at the outset of the crisis. I do not think Governor Sununu has any plans to abuse his powers by targeting churches, jailing citizens arbitrarily, or doing anything else unbecoming of the executive of an American state. Sununu is not the issue. The problem is that the Governor and his administration do not seem to know or care about the risks that a future administration will abuse the powers he has claimed.

Christian churches, in particular, have good reason to fear that a future executive might act abusively. We recently saw former Executive Councilor Andru Volinsky narrowly lose the Democratic nomination for Governor of New Hampshire. In 2017, Volinsky interrogated Christian nominee Frank Edelbut about his religious beliefs, including questioning him about the teaching on marriage in Ephesians 5, which Volinsky suggested should not be believed by a public servant. After watching Kentucky Governor Andy Beshear use COVID-19 to maliciously target churches, it is not hard to imagine the same thing one day happening in the Granite State.

 

We should be concerned about whether Gordon MacDonald might enshrine the suspension theory as Chief Justice of the New Hampshire Supreme Court.

 

At Cornerstone, we have sought to introduce legislation that would reform the state’s emergency powers statutes to add that civil liberties may never be suspended. Because we became aware of the Binford decision after the deadline for State House bills had passed, we turned to the Republican-controlled Senate for help. Unfortunately, the GOP Senators we spoke to stood firmly behind the Governor’s ability to suspend constitutional rights, claiming that there was no popular demand for any limitations on executive power.

Some Republicans, wary of any division on the right, have also urged us to privately approach Governor Sununu and ask him to repudiate the arguments made by his lawyers. Even if the Governor was inclined to do so, however, he cannot undo a judicial opinion letter. The Attorney General’s office has already asked for and obtained the Binford decision, and the idea is out there to be used by a future Governor.

This means that we might be left with one avenue to ensure that civil liberties are not suspended: appellate courts. Yet Gordon MacDonald, whose office asked for and obtained the Binford ruling, has just been re-nominated to the post of Chief Justice of New Hampshire. This raises the possibility that MacDonald could one day codify the “suspension” theory in New Hampshire Supreme Court precedent.

It is critical that, as part of the confirmation process, MacDonald is questioned on this issue. Concerned citizens should call upon their executive councilors to ask MacDonald about the idea of suspending constitutional rights.

Of course, nominees cannot comment on how they will decide specific hypothetical cases. Yet, as Chief Justice, MacDonald’s job will be to decide specific cases under the Constitution. Asking MacDonald whether the Constitution can simply be set aside by some official is therefore not asking him to prejudge a case, but whether he will faithfully do the job to which he has been nominated.

Nor should this be a difficult question for the Attorney General to answer. If I were MacDonald, my answer to this line of questioning would be easy. I would say “I regret that my office made that argument. The federal and state constitutions are inviolable. They can be lawfully amended, but they cannot be nullified or set aside by an executive, judge, or legislature.”

 

 

Ian Huyett is the General Counsel and Director of Policy at Cornerstone, a Christian advocacy group in New Hampshire.

 

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