My Turn: The ticking time bomb of excessive government power

For the Monitor
Published: 12/10/2021 6:00:44 AM
Modified: 12/10/2021 6:00:16 AM

Imagine that two years ago, someone had told you OSHA’s broadly defined powers would soon be applied in an attempt to force Americans into accepting a novel medical treatment they don’t want and some believe they don’t need. Most people would have written that off as a highly unlikely scenario, probably not worthy of much attention. Nevertheless, that very situation is currently in play. Thankfully, federal courts have stepped in to put a temporary halt to OSHA’s planned orders, but the threat still looms for millions of businesses and for the workers they employ.

Here in New Hampshire, we face a similar situation with respect to civil liberties, broadly speaking. It has the potential to negatively impact freedom of speech, religious liberty, Second Amendment rights and more. Unless we take affirmative steps to clarify state law, a future governor could conceivably invoke our state’s Emergency Powers statute to suspend or limit constitutional rights. This might sound a bit crazy, but the New Hampshire Superior Court has expressed that very position in the 2020 Binford case.

On page 16 of the Court’s decision, Judge John Kissinger asserted that “the Governor may suspend or limit constitutional rights during a state of emergency.” That potentially includes freedom of the press, freedom of assembly, the right of habeas corpus, religious liberty and the right to keep and bear arms.

When viewed in the broader context of New Hampshire’s Emergency Powers statutes, this constitutes a ticking time bomb that leaves the citizens of our state vulnerable to abuses of power.

Imagine the following scenario. A New Hampshire governor announces that gun violence is an imminent public health crisis, worthy of an emergency declaration. In fact, CDC Director Dr. Rochelle Walensky recently hinted at CDC action with respect to gun violence, calling it a “serious public health threat.” “Something has to be done about this,” she continued. “Now is the time — it’s pedal to the metal time.”

Under our state’s emergency powers act, a governor could conceivably declare a state of emergency with respect to gun violence, and unless that position is overturned by a majority of both houses of our legislature, that state of emergency would have the operative force of law.

Given the Superior Court’s decision in the Binford case, a governor could conceivably order the closure of gun stores, prohibit the sale of ammunition or even seize privately-held firearms. In other words, a governor with the support of a simple majority in either the Senate or the House could trump the rights guaranteed under the U.S. and New Hampshire constitutions.

For readers who don’t share my concern about potential infringements on Second Amendment rights, let me offer an alternate scenario. A wave of mostly peaceful protests is marred by incidents of looting and vandalism. The governor declares a state of emergency, ordering a ban on peaceful public assembly and arresting and holding the protest organizers without charge.

Fearing that press reports may further inflame public opinion, the governor also orders a moratorium on coverage related to the protests. Remember, the New Hampshire Superior Court has explicitly stated that “the Governor may suspend or limit constitutional rights during a state of emergency.”

Fortunately, there’s an easy fix for this problem. HB 440, the Civil Liberties Defense Act, would add a remarkably simple clarification to state statute, asserting that “civil liberties shall on no account be suspended, nor shall the United States Constitution or the New Hampshire bill of rights be suspended, set aside, or otherwise infringed.”

This should not be controversial. The framers of the U.S. and New Hampshire Constitutions recognized the importance of enshrining certain liberties as unalienable human rights. Regardless of which side of the aisle you’re on, HB 440 simply makes good sense. There is no reasonable argument to be made against it.

Unfortunately, the Senate Judiciary Committee retained HB 440 earlier this year, judging that it required further review and discussion. On Tuesday, Dec. 14, that committee is expected to act upon the bill, making an up-or-down recommendation to the rest of the Senate.

If you share my view that fundamental liberties must be safeguarded against government overreach, regardless of which party is at the helm, I urge you to contact members of the NH Senate Judiciary Committee and ask them to support an “ought to pass” motion on HB 440.

(Jim Kofalt is state representative for Hillsborough District 4.)

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