Small Business Sues Sununu Over Lockdown

A Hair Salon in Bedford has sued Governor Sununu over his unscientific, arbitrary and capricious “flex” opening of the New Hampshire economy.

Some highlights:

I think the lawsuit comes at it the wrong way. More specifically, the Hair Salon does not challenge the Governor’s statutory “emergency powers,” but rather challenges the manner in which he is implementing them.

As I wrote in a prior post:

Governors do NOT get to write laws simply because the Governor … or the Governor and Legislature … or even the Governor and Legislature and Judiciary … think it would be expedient for him to do so. Let alone laws the suspend constitutional rights. Let alone federal constitutional rights. And that is precisely what Sununu did in “Stay-at-Home 2.0” … write laws … including laws that suspend constitutional rights … including federal constitutional rights.

Say it with me, Team-Sununu: to the extent RSA 4:45 III(e) (below) is exercised by the Governor to write laws, which is exactly what he did in “Stay-at-Home 2.0” … RSA 4:45 III(e) is UNCONSTITUTIONAL:

III. During the existence of a state of emergency, and only for so long as such state of emergency shall exist, the governor shall have and may exercise the following additional emergency powers: 

(e) 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 Constitution does NOT allow the Governor to act as a dictator … which is what “Stay-at-Home 2.0” represents: the Governor writing a bunch of new laws that he will determine how to enforce … in any circumstances.

Consequently, “Stay-at-Home 2.0” can and should be treated as guidance. Nobody … no business … is obligated to follow it.

The Hair Salon asks the Court, in Count I, to declare the there is no basis for the State of Emergency. I doubt that a court will do so, especially when the Legislature can override the Governor’s decision and end the State of Emergency.

Count II argues that the Hair Salon is being denied equal protection of the laws because it is being treated differently than similarly situated businesses. I doubt that a court is going to second-guess the Governor’s determination of what businesses are essential and non-essential (where the Hair Salon concedes that the Governor has such power). The better argument, in my opinion, is that the Governor has no power under the State Constitution … and the Legislature cannot grant the Governor the power to … unilaterally write his own Commercial Code, which as a practical matter what his “emergency orders” amount to.

Count III argues that the the Governor’s emergency orders amount to a “taking.” I am skeptical that a court will agree. There has been no physical taking, and the Salon does not show the emergency orders will render the Hair Salon economically unviable (see Paragraph #48 above).

Nonetheless, I applaud the Hair Salon for attempting to fight back.