Senate Curtails Governor’s Emergency Authority, Expands Religious and Individual Rights

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COVID-19 vaccination being administered over the weekend of March 9 at the NH Motor Speedway Super Site event.

By GARRY RAYNO, InDepthNH.org


CONCORD — Lawmakers want to curtail a governor’s authority during a state of emergency.

And they want to clarify how individual and religious rights may be impacted by emergency orders in the future, and to allow individuals to refuse to be vaccinated.

The Senate Thursday approved House Bill 417 which would require greater legislative involvement during an emergency than occurred during the last 15 months of the COVID-19 pandemic.

Under the bill, a governor could declare a 30-day state of emergency, but the legislature would have to approve any renewals, unless it is unable to meet.

The bill would also require Executive Council approval of expenditures and accepting federal money during the emergency and Joint Legislative Fiscal Committee approval for expenditures over $100,000.

The proposed bill would balance the need for legislative oversight and the governor’s emergency authority, said Sen. Sharon Carson, R-Londonderry, and could affect state-of-emergencies in the future.

The bill would also require the governor to inform the Speaker of the House and Senate President of an impending order with a description.

The governor’s authority during the pandemic has been a concern for lawmakers, many believing the legislature was bypassed.

When the pandemic hit, Gov. Chris Sununu declared a state of emergency and with the advice of his legal counsel claimed, as governor, he had the authority to accept $1.25 billion in federal CARES Act money and to spend it as he saw fit without legislative or Executive Council approval.

His office cited RSA 4:45, III(e) which says the governor has the authority “To perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.”

The law was written in 2002 after the terrorist attacks on New York City and Washington, D.C. but the authority had never been used until last year.

Sununu’s claim he did not need legislative authorization was confirmed by a superior court ruling.

New Hampshire is currently under a state of emergency as Sununu has renewed it numerous times and said it will continue for some time.

While Sununu’s sole decision on the use of the federal money was one issue, other Granite Staters objected to his use of executive orders to restrict activities and shut down businesses during the height of the pandemic. A mask mandate Sununu issued in November drew protestors to his home in Newfields.

Senate Minority Leader Donna Soucy, D-Manchester, proposed clarifying the language so it says exactly what the governor’s authority is during a pandemic, and to make statutes consistent so not to confuse civil and public emergencies, but the Senate voted it down.

The Senate approved the bill on a 24-0 vote.

Freedom From Vaccination

The Senate — down party lines — 14-10 approved a bill that would prohibit the government from requiring a person to have a COVID-19 vaccination for such things as employment, entering a building or to receive services, something like a vaccination passport, said Senate Majority Leader Jeb Bradley, R-Wolfeboro.

He said the bill reinforces a person’s right to determine what he or she puts in his or her body.

The state cannot compel someone to take the vaccine but can compel medical intervention, he noted.

House Bill 220 came from the House with a list of exemptions and what could not be superseded, and the Senate added that it does not apply to county nursing homes, the New Hampshire Hospital or medical facilities, Bradley said.

Sen. Bob Giuda, R-Warren, questioned if it applies to public schools, if they could require students be vaccinated to attend.

Bradley said it does not change existing law which does require students to have a number of vaccinations, but also includes religious exceptions.

The law would allow the Department of Health and Human Services to make rules for what is required which could — in the future — include COVID-19.

Sen. Thomas Sherman, D-Rye, a physician, noted vaccines are the second most important milestone to public health, noting sanitation is the most important.

He said many members of the Senate don’t remember polio or measles, because of vaccines, noting “this is not a light discussion with more than 98,000 infected and 1,346 deaths alone in New Hampshire.”

Sherman said since vaccines have been widely available in the state, the rate of infections, hospitalizations and deaths has dropped significantly.

“We are in the middle of the pandemic,” Sherman said, “the light at the end of a long, dark COVID tunnel can clearly be attributed to (the vaccines).”

He said as a doctor the bill sends the wrong message particularly in a pandemic.

“It is the wrong time, it is the wrong message,” Sherman said, “and it threatens to undermine our most powerful defense against the next pandemic.”

The bill goes back to the House due to changes the Senate made.

Religious Protections

The Senate, on a 14-10 partisan vote, approved House Bill 542, which would include religious institutions and facilities as essential services during a state of emergency.

The bill would allow churches and affiliated religious organizations to hold services during a state or emergency like the pandemic. Sununu’s emergency stay-at-home order prohibited churches from holding services.

Supporters of the bill argued if Home Depots or state liquor stores were allowed to be open during the shutdown, churches should be open as well.

Carson said people’s ability to exercise their constitutional right to religious beliefs was taken away.

She said many people suffered from isolation and not being able to join with others to worship.

Churches also house food pantries and clothing donations that people could also not access during the emergency order, she noted.

There is nothing that says you cannot close a church, she said, but this does say a church has to be included in what the state deems to be essential services.

But Sen. Cindy Rosenwald, D-Nashua, said the bill’s definition of religion is way too broad and will allow many other organizations to meet during a pandemic when it may not be in the best interest of public health.

Others said the bill needs more careful consideration before moving forward, but the majority disagreed.

The bill goes back to the House due to changes the Senate made.

Civil Liberties

The Senate again voted down party lines 14-10 to send House Bill 440 back to the Judiciary Committee for more work.

The bill would prohibit the suspension of civil rights during an emergency.

How civil liberties were treated during this pandemic is a concern to many, said Carson.

“We would like more time to understand what happened,” she said, “and what should happen in the future.”
Soucy said she has grave concerns about the bill and has never seen one like it in her two decades in the legislature.

She said the pandemic is in the forefront of many people’s minds, but they need to separate the decisions made by individuals from those made by the person in office.

She said the bill would assume violations of civil liberties even when there have not been any.

“This bill is unnecessary and trying to solve a problem … that is limited in scope,” Soucy said. “This is premature.”

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

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