Charlie Arlinghaus

July 17, 2013

As originally published in the New Hampshire Union Leader

There is a right way and a wrong way for the government to do something stupid. It won’t surprise anyone that the current administration in Washington has chosen the wrong – and almost certainly illegal – way while New Hampshire managed to do a whole host of silly things but in the right way.

Routinely, governments find that laws previously passed are quite inconvenient and get in the way of something they are trying to do (or not do) today. But they don’t want to repeal the law for the future, they just don’t want to follow it this year.

That happened recently with the byzantine federal health care law. Those following closely will recall that the law includes mandates to purchase health insurance for both individuals and for businesses. Implementing the law has taken longer and been more complicated than some administrators had expected.

Citing concerns about the complexity of the requirements under the law, the administration unilaterally suspended for a year the portion of the law that applies to businesses. They didn’t ask Congress to pass a temporary repeal. They merely announced that they will cease to enforce a law of the land for a year –businesses get this break, individuals are still out of luck. Apparently the law is too complex for businesses to follow but perfectly fine for individuals.

Businesses with more than 50 employees, the ones to whom the law applies, are only a few percent of all firms but they account for 72% of employment.

While I think delaying the very complex law is reasonable, I would have delayed for both businesses and individuals just to be fair. But, a much more important point, administrators do not have the authority to pick and choose which laws they will enforce or not. If a law making the tax rate 35% passes, can the IRS announce it will only enforce the first 30%? If Congress chooses to require airbags on new cars, would it be OK for the transportation secretary to announce that they won’t actually enforce that?

Administrations can request laws be repealed or suspended but they may not choose to enforce or not laws they disagree with. If a Republican had replaced the current president, would it have been acceptable for him to not try to repeal ObamaCare but instead just announce he won’t be enforcing it? Of course not.

In New Hampshire, we pass temporary restraints on laws all the time. But the governor doesn’t decide to just enforce it. Instead the legislature passes a law temporarily suspending another one.

For example, technically we have a law that requires surpluses left at the end of the two-year cycle to be deposited into a “rainy day fund” – in theory to allow the extra in good years to be a reserve to balance out small revenue shortfalls in bad times. But every budget for the last five has suspended that law.

After state reserves had been drained from $188 million to $17 million by 2003, then-Gov. Craig Benson set of a goal of building the state’s operating reserving back to a more prudent $100 million. Benson’s $82.2 million surplus would have brought the state’s reserves to $99.5 million had the law been allowed to work. Instead, the next governor and next legislature passed a law suspending the rainy day fund law so the surplus would be available for them to spend.

The surplus turned out larger than they thought so they put some of it and some of the $51 million surplus two years later aside but they kept and spent a total of $61 million that should have been set aside for the rainy day that was on their doorstep.

The Republican legislature that decried this sort of practice in 2011 nonetheless passed a law preventing $17 million from going in the rainy day fund and the current divided government hangs on to that $17m and an additional $39m surplus the last budget generated. At this point, it isn’t clear why we have a rainy day fund at all.

As annoying as I find the bipartisan effort to neuter the state’s rainy day fund, our governors and legislatures do it legally. This was never done by executive fiat. Instead, the law was duly suspended by passing another law as opposed to administration in Washington which is just refusing to enforce the laws they are elected to administer.

2 replies
  1. Eugene Van Loan III
    Eugene Van Loan III says:

    People might be interested in confirmation from the New Hampshire Constitution of Charlie’s view about the Executive Branch’s lack of authority to suspend a duly-enacted law:

    ARTICLE I, PART 29: The power of suspending the laws, or the execution of them, ought never to be exercised but by the legislature, or by authority derived therefrom, to be exercised in such particular cases only as the legislature shall expressly provide for.

    Reply
  2. JOANNA HYATT
    JOANNA HYATT says:

    By George I think I’ve got it!
    We live in Suspension by Exemption for the Prevention of Contemption of the laws of wisdoms Convention. In Structural Engineering we call that the Sky Hook Theory.
    That’s when the architect didn’t correctly do the math of the stress test and prays that “The Great Designer” will reach down and pull his stupid butt out of the fire.

    Reply

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