In the angst over the two or three loud-mouths who shut down the Executive Council meeting at Saint Anselm College on Wednesday, we should not overlook the real issue underlying the emotion. Just as the Biblical figure Esau traded his sacred birthright for a bowl of stew, so too was the State of New Hampshire about to trade away its sovereignty for $27M in federal grants.
The grants would have placed legal obligations on the state, both known and unknown, that would ostensibly take precedence over state law and even the state constitution.
By their terms, these grants would require the state to
- comply with existing and/or future directives and guidance from the Secretary regarding control of the spread of Covid-19,
- assist the U.S. Government in the implementation and enforcement of federal orders related to quarantine and isolation,
- provide to CDC copies of and/or access to COVID-19 data collected with these funds, including but not limited to data pertaining to COVID-19 testing
These grant requirements purport to legally compel the state to follow unspecified future directives of a federal agency without consideration of state law. This is clear in the grant language itself, which states that “CDC will specify in further guidance and directives what is encompassed” within these obligations.
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On Wednesday, Governor Sununu characterized the grant obligations as “boiler-plate language” that “doesn’t really hold water.” He has directed Attorney General John Formella to draft an opinion to assure councilors the language does not legally bind the state.
While at this time it is unclear what powers the federal government may have to enforce contractual obligations that violate state law, it is nevertheless perfectly clear that in the recent past, the Sununu administration has been more than willing to violate state law to comply with federal stipulations.
Executive Order 76, which the Governor signed on December 11, 2020, did just that. Contrary to state law, and arguably Part 1, Art 2b of the state Constitution, Governor Sununu ordered that “All patient-level information relating to [Covid-19] vaccine administration shall be stored in the [state vaccine registry] as a medical record.” In so doing, Governor Sununu recognized that he had “suspended” a duly enacted state statute “for the duration of the State of Emergency.” At a press conference discussing this order, the Governor stated that he had no choice due to a federal contract.
If you were to ask what power Governor Sununu, or any governor, has to suspend state law to collect citizen’s private medical data at the behest of the federal government, you would be more than justified in doing so. It’s a fair question, and it’s a question that this Governor has steadfastly refused to answer.
It’s no wonder that New Hampshire citizens, and many legislators, are frustrated and have had enough of arm-twisting and interference from the federal government. The public expects our representative to uphold state authority to manage public health, which is, and traditionally has always been, squarely within the prerogative of state government.
The author is the Chair of the Liberty Defense Fund of New Hampshire.