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New Hampshire high court advises legislature it cannot force AG to join health care lawsuit

The New Hampshire Supreme Court [official website] ruled in an advisory opinion [text, PDF] on Wednesday that the legislature cannot force Attorney General Michael Delaney [official website] to join a lawsuit contesting the Patient Protection and Affordable Care Act (PPACA) [text; JURIST news archive]. The New Hampshire Senate [official website] asked for the opinion in reaction to HB 89 [text], a bill passed by the New Hampshire House of Representatives [official website], which would require Delaney to join "as a plaintiff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al." The Supreme Court stated that this was beyond the legislature's function.

HB 89 would usurp this essential power because it would divest the executive branch entirely of its authority to decide whether it to initiate a particular civil action on the part of the State. The executive branch, not the legislative branch, is empowered to protect the interests of the people by taking care that the laws are faithfully executed.
House Majority Leader DJ Bettencourt stated he believed the bill was protecting New Hampshire citizens [Nashua Telegraph report] from health care reform, rather than usurping executive power.

The US Court of Appeals for the Eleventh Circuit [official website] heard oral arguments earlier this month in the suit New Hampshire was to join. Florida's lawsuit, filed in March and joined by 20 states [JURIST reports], most recently Kansas [JURIST report] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report], seeks injunctive and declaratory relief against what it alleges are violations of Article I and the Tenth Amendment [texts] of the Constitution, committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states.

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