A Superior Court ruling last week in the separation-of-powers dispute between the executive and legislative branches came less quickly than desirable, but it has at least provided important clarity over the governor’s authority to spend federal CARES Act funds. Assuming the decision isn’t overturned, it will provide guidance if Congress and the White House can ever get their act together to approve additional pandemic relief aid to the states.
The lawsuit dates to the early days of the COVID-19 shutdown after Washington allocated $1.25 billion to New Hampshire under the CARES Act enacted in late March. By then, Gov. Chris Sununu had declared an official state of emergency, and he asserted that a 2002 state law enacted in the wake of the 9/11 terrorist attacks granted him sole authority over spending the federal funds during the state of emergency. That position flies in the face of customary legislative oversight of spending, and the legislative leadership sued the governor in Hillsborough County Superior Court in mid-April, arguing that spending non-state funds in excess of $100,000 requires approval of the Joint Legislative Fiscal Committee.
At the time, we expressed hope for a quick resolution, and that seemed to have been delivered when Judge David Anderson ruled on April 22 that the legislative leaders were not proper parties to bring the suit and, in any event, he wouldn’t step in to restrict the governor’s spending. In early June, however, he changed his mind about the legislative leaders’ standing and let the suit proceed, although he continued to hold off interfering with Sununu’s spending of the federal funds.
Last week, Judge Anderson issued what appears to be his final ruling in the case, agreeing with the governor’s interpretation of the post-9/11 law and dismissing the suit. There’s no word yet whether the legislative leaders will appeal.
Because the governor is a Republican and the legislative leaders are Democrats, it’s been easy to paint this as a partisan squabble, and Sununu, who rarely hesitates to bang the partisanship drum loudly whenever Democrats disagree with him, commented following the ruling that it was “unfortunate so many state resources were wasted defending this failed lawsuit by Democrat leadership.” We don’t see it that way and instead welcome the clarity the ruling brings, not only for the CARES Act expenditures, but also for any spending of future federal relief funds during the COVID-19 state of emergency.
Though the governor’s position prevailed, two important points were made by Judge Anderson. First, he noted, Sununu’s authority to spend federal funds without legislative oversight during a state of emergency was granted by the Legislature and could be removed or restricted by changing the law. Further, the judge flatly rejected the governor’s argument that a catch-all provision in two other statutes relating to his emergency powers granted him broad authority to circumvent Legislative Fiscal Committee oversight of state of emergency spending, a position that could have led him to claim sole authority over spending of state as well as federal funds.
Fortunately for the state, there was no holdup in allocating CARES Act funds while the legal dispute continued. Sununu established the Governor’s Office for Emergency Relief and Recovery (GOFERR) to oversee the use and reporting of the relief funds, and the legislative leaders who brought the lawsuit have constructively participated in the work of the bipartisan legislative advisory board Sununu appointed to make recommendations to GOFERR for spending the federal funds. And Sununu and GOFERR have been reasonably transparent in the decisions regarding the spending.
In short, the state has not suffered while the separation-of-powers dispute has continued. Still, the considerable length of time this public-health state of emergency seems sure to continue strikes us as far different from what the Legislature had in mind when it passed the post-9/11 statute, and it seems ripe for reexamination. We agree that legislative oversight of spending is desirable whenever possible. But, as we noted when the lawsuit was filed in April, there must be no impediment to deploying federal relief funds swiftly and effectively, and there must be full transparency in all the decisions. Sununu’s steps in establishing GOFERR, assuring legislative leadership input into its decisions and providing some transparency were good ones. It would be better, however, for such or any other arrangement to be pursuant to statute and not just left up to whoever is governor.