Civil Liberties Defense Act (HB 440)

Written Testimony for HB 440 as Amended, the Civil Liberties Defense Act submitted to the NH House Judiciary Committee by Ian Huyett, Esq. on behalf of Cornerstone Action February 26, 2021

The legislative findings in this proposed amendment explain, in a simple step-by-step manner, the need for the amendment and its modest scope. I hope that, if Committee members look at this proposed amendment, they will see that it’s not about any partisan issue. It’s simply about the place of civil liberties protections in general in our courts during states of emergency. 

At today’s Committee hearing, there was much discussion of specific scenarios in which a Governor might need to take swift action. Strong executive action, however, simply does not require that constitutional rights be suspended or set aside. A Governor who evacuates people to contain a radioactive leak, or even limits certain gatherings, can do so under standard constitutional analysis. In fact, executive actions around the country are routinely upheld by courts under ordinary constitutional scrutiny. New Hampshire does not need to adopt the radical theory that civil liberties are subject to suspension in an emergency and that no constitutional scrutiny applies to emergency actions. 

It’s my hope that it’s possible for this bill—as amended—to have some bipartisan support.

It wasn’t that long ago that, on the national level, you would see civil liberties advocates on the right and left cooperating to protect some liberties. If a coalition like this is still possible on any one civil liberties issue, then it must be possible on the question of whether civil liberties in their entirety are subject to suspension.

I acknowledge that our Governor is not doing the kinds of things Americans might think of when we hear the words “suspend civil liberties.” But a future Governor could do precisely those things under our Superior Court cases. The time to fix that problem is now, when what I am saying sounds like a legal abstraction, and not five or ten years from now, when we learn the hard way that it is never a good idea—even temporarily—to codify unlimited power.

I know there are some Republicans who are insistent that the governor should have this power. But, unfortunately, I think their position is dependent upon who the Governor happens to be at this moment. I don’t think they would take that view if a Democrat were the sitting governor—and I think everyone has some incentive to place certain basic limits on the state’s power in the event that the other side one day wields that power.  

At the federal level, of course, this argument no longer carries a lot of weight: consistent trends show that Democrats are likely to control the federal government for the long-term foreseeable future. But, at the state level in New Hampshire, I think it is far from clear that we will be a deep blue state in ten or twenty years. A future Governor who uses current emergency powers law abusively could be either a Democrat or a Republican. I hope there will be at least some agreement among Democrats and Republicans that the House should act to stop that from happening. 

See also: HUYETT: Why do Sununu and MacDonald Need to Suspend Constitutional Rights?