The big news in New Hampshire politics the past few days has been a federal court decision that prevents a State law passed in 2025, which ended automobile inspections on January 31, 2026, from going into effect. The reaction from House Republicans, who intended to make this law a centerpiece of their reelection efforts, were rather hyperbolic, all but threatening to tar-and-feather Judge McCafferty. For example:
Well, it turns out that Judge McCafferty’s decision is clearly erroneous. But not for any of the reasons claimed by House Republicans like Spillane and Berry. Rather, McCafferty’s decision is obvious legal error because it unconstitutionally “commandeers” New Hampshire State government to carry out a federal regulatory program:
Credit where credit is due. We initially believed that this was one of the rare instances when Judge McCafferty got it right. But then we came across Professor Jonathan Adler’s analysis, and we realized we were mistaken:
We strongly encourage you to read Professor Adler’s post (linked to image above), which makes the unassailable case that Judge McCafferty violated the federal constitution by ordering New Hampshire to continue emissions inspections. A couple of snippets:
What we want to focus on here is that New Hampshire’s Attorney General failed to make the “anti-commandeering” defense. Professor Adler’s take:
Needless to say, incompetence could explain the Attorney General’s failure to argue the anti-commandeering doctrine. However, in the recent ConVal education funding appeal, the Attorney General also failed to present the State’s strongest argument, that the Claremont line of cases were obviously wrongly decided and should be overturned:
The Attorney General’s failure to argue that Claremont should be overturned virtually guaranteed judgment for the plaintiffs in ConVal, just as the Attorney General’s failure to argue anti-commandeering in the automobile inspections case virtually guaranteed the State law would be enjoined.
One more thing. Apparently, the State waited until late December to seek the necessary waiver from the EPA, six months or more from when the underlying bill became law. Certainly feels like someone or someones in the Executive Branch were in no hurry to end automobile inspections.
(If you’re interested in reading more about the New Hampshire Supreme Court’s education funding jurisprudence, we recommend From Claremont Through ConVal – The New Hampshire Supreme Court’s “Adequate-Education” Hoax.)
