In New Hampshire, a GOP-Led Assault on the State Judiciary

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After the state Supreme Court disagreed with them over President Obama's health law, Republican legislators want to breach the balance of powers

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Newt Gingrich's unconstitutional plan to haul federal judges before Congress to hector them for their rulings isn't just some untethered hypothetical tossed around during the heat of a presidential campaign. A similar assault on the judiciary is currently underway, for real, in New Hampshire, where the state House of Representatives Wednesday declared defiance of a state Supreme Court ruling and urged the state Senate to simply ignore it.

Here are the fighting words of state Rep. Dan Itse, the Republican who thinks he's Thomas Paine and who wants you to think that New Hampshire's judiciary still takes its orders from King George III. In this passage alone you can see many of the same grand delusions and half-baked constitutional theories that animate Gingrich's dangerous crusade against judicial independence and separation-of-powers principles. 

If we do not pass H.R. 13 we will be enabling unelected bureaucrats to usurp and pervert the power of the people, destroying their liberty. The wall of the Constitution, which confines government and preserves liberty, has been torn down one brick at a time. You have the power to rebuild that wall. Now is the day and the hour, it is moment in history, to hold the line, to defend liberty.

With rhetoric like that, you would think that New Hampshire itself was in imminent peril from some despotic power. But when you learn more about the story of H.R. 13 you realize quickly that the Devil isn't at the door in Concord (or anywhere else in the Granite State). The story of H.R. 13, instead, is the story of a spoiled, overreaching legislature, angry and sullen about being rebuffed by responsible individuals in the other two branches of government.

Here is the video of the session (skip ahead to 18:58 unless you want to be bored to tears).

The story began earlier this year when the state senate asked the Supreme Court of New Hampshire for an advisory opinion about a pending bill that sought to compel the state's attorney general, a member of the executive branch, to join litigation against the Patient Protection and Affordable Care Act. In a ruling issued in June, the court said that the legislature did not have such authority.

Dozens of former attorneys general of the state, both Republicans and Democrats alike, unanimously endorsed the state Supreme Court's separation of powers analysis. That should have ended the matter. But it didn't. House Republican lawmakers refused to accept the court's interpretation. They refused to listen to the state's political establishment. The people, they said, were being deprived of their "liberty"-- their liberty to sue the federal government.

So Itse and company introduced H.R. 13, which formally "repudiates" the state Supreme Court ruling and which urges the state Senate to pass the the underlying bill compelling action on pending health care litigation. Then Itse and company held a hearing. Representatives of the state's judicial branch, judiciously you might say, decided not to attend the event. In response, GOP leaders trashed the court. From the text of the GOP release:

Did the Supreme Court choose not to attend out of disrespect for the people and their elected representatives, or because they recognized that their opinion was indefensible? In any other court, the failure to attend a hearing without notice would be acquiescence.

Next, the House GOP urged its colleagues to "defend the power delegated to them in the Constitution by the people" rather than "let it be wrongfully handed over to unelected officials." Remember, the "power" in play here, initially, was an extraordinary attempt by the House to dictate to the executive branch, to its chief lawyer, which disputes he should and should not litigate. If that's a core legislative function, anywhere in America, I'm James Madison.

And yet 258 elected officials in New Hampshire Wednesday voted to urge their colleagues to disobey the court ruling. Have the good citizens of New Hampshire been deprived of their "liberty" because lawmakers didn't get the answer they wanted from the judicial or executive branches on joining a federal lawsuit over health care? If so, mark the date; the definition of "liberty" now is open to all sorts of other legal and constitutional perversions.

The comparison between the New Hampshire episode and the Gingrich plan is not perfect. Federal judges, for example, have far more protection and independence than their state counterparts. But it says an awful lot about how mainstream these sorts of attacks on the judiciary have become that this one would get this far. And over what? The chance to join in litigation over the Affordable Care Act, as if New Hampshire's joinder would change history. 

Bill Raftery, at the National Center for State Courts, has done an excellent job at his "Gavel to Gavel" site of keeping track of the anti-judicial movement in the Granite State. He's written, for example, about the House's efforts to pass a law that would strip the judicial branch of its jurisdiction to review cases involving school funding in the state. There have been at least 10 such measures proposed in the past few years, Raftery reports. Ten

For now, anyway, the last word goes to state Rep. Christopher Serlin, a Democrat from Portsmouth, who unsuccessfully urged the House not to waste its time attacking the authority and good faith of the other two branches with the passage of H.R. 13. "Nothing that we do here today," he told the chamber Wednesday before hundreds of his colleagues ignored him, "is going to affect the citizens of New Hampshire..." 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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