Tightening the Reins on a Governor’s Emergency Powers

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File photo of the State House in Concord


CONCORD — A series of bills sponsored mostly by Republicans would rein in the powers Gov. Chris Sununu used frequently during the last year of the coronavirus pandemic.

Several bills limit how many times a governor could renew a state of emergency without legislative approval and others would require the legislature to approve executive orders after the initial phase of an emergency.

“I never imagined an abuse of power of this magnitude committed in the state of New Hampshire,” said former Rep. Andrew Manuse, who now leads a group seeking to end all pandemic-related restrictions. “The executive branch set up a government of itself and that should never happen again.”
He said the governor essentially usurped the traditional rolls for the legislature to write laws and set policy and the judicial branch’s authority to prosecute, try and rule on laws.

“It is clear the governor has the authority and duty to promote and protect the public’s (health and) safety,” he said, “(but the emergency statute) does not give him authority to make, to suspend or to replace laws or suspend the Constitution, but he has done all of this.”

Manuse said the point is not to end the state of emergency, which the legislature should have done by now.

“The point is to protect the state in the future by added checks and balances so that one man does not have power and authority to do anything he wants,” he said. “One man should not have that roll and authority that people invested in the legislature and it is the people of the state who ought to govern themselves.”

The House Executive Departments and Administration Committee Monday held public hearings on four bills related to issues raised during the pandemic, three to restrict any future governor’s authority and several would limit law enforcement’s or first responders’ ability to force people to evacuate in an emergency.

Three of the bills, House Bills, 275, 417 and 433 would require the legislature to approve any renewal of the state of emergency after the first declaration by the governor.

House Bill 417 would extend the state of emergency declaration from the current 21-day limit to 30 days, but would require the legislature to extend it beyond the first declaration. And the bill would require a majority of the House to approve executive orders once the emergency declaration is renewed.

House Bill 433 would require legislative approval after the first 21-day period as would House Bill 275.

The three bills take aim at RSA 445, which was passed after the Sept. 11, 2001, terrorist attacks and Sununu used to justify bypassing the legislature on spending the $1.25 billion federal Cares Act money. His contention was upheld by a superior court judge.

HB 275 supporter, Rep. Melissa Blasek, R-Merrimack, said the statute was intended to address war, natural disaster or a terrorist attack, not a long-running emergency like the pandemic.

“We’re at a point where we no longer need to be in a state of emergency,” Blasek said. “We should be able to have a state of emergency without handing unlimited authority over to the executive branch with no oversight.”

Committee member Peter Schmidt, D-Dover, said he found some of the bill’s provisions troubling and wondered if the sponsors were legislating for something that occurs once a century and is a highly contested political and public health issue.

He noted if the bill requires a unanimous vote from the Executive Council if the legislature is unable to meet, isn’t that giving tremendous authority to one member who could decide not to extend the state of emergency.

“If it is a very serious emergency, then everybody would agree,” Blasek said. “I prefer to err on the side of freedom.”
The provision making an evacuation order a recommendation instead of mandatory, drew concern from both committee members and from Justin Kates, Director of Emergency Management for Nashua.

He said the language does not reflect the reality of what first responders face.

“It is not realistic,” Kates said. “There is no way for us to track who has decided not to accept the offer (of help). It is just not possible.”

He was also concerned about the requirement for legislative approval to renew declarations of emergencies, noting the legislature uses a slow, deliberate process when swift and decisive action is needed in an emergency.

“Anything that impedes responding quickly would be a concern to the emergency management community,” Kates said.

Several committee members said the change from mandatory to recommended would likely put first responders in greater danger, particularly as often happens, if a person changes his or her mind and wants help after the situation has deteriorated and become much more dangerous.

But supporters of the bill and House Bill 414, which changes only the evacuation order to recommended, said there have been ample case law and U.S. Supreme Court rulings that first responders and law enforcement do not have a duty to provide assistance.

The prime sponsor of HB 414, Rep. Tony Lekas, R-Hudson, said there is no legal responsibility to provide assistance so if they refuse to leave it will be their responsibility.

“People have the right to stay where they are or not,” Lekas said. “They may be foolish and they may come to regret that decision, but that is their decision to make.”

He noted with freedom comes responsibility.

Manuse said ordering someone to leave their home at the “point of a gun” is starting a “mini-war.”

“People have an obligation to protect selves and to do that voluntarily,” he said.

HB 275 also creates a nominal state of emergency or “mini-emergency,” that would allow the state to continue to receive federal emergency money while not being in a full state or emergency.

But several committee members said they objected to the provision.

“You’re either in a state of emergency or you are not,” said committee member Rep. John Sytek, R-Salem, “not a subterfuge to get federal funds without a state of emergency. I am not comfortable with it.”

The committee intends to work on the bills before making its recommendations.

Garry Rayno may be reached at garry.rayno@yahoo.com.

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