When PepsiCo opened the first Pizza Hut in the Soviet Union in 1990, one challenge the company had was convincing Soviet bureaucrats that the cooks didn’t need to be trained chefs. 

“This is something the Russians don’t understand,”Andrew Rafalat, Pizza Hut’s regional director for the Soviet Union and Eastern Europe, told The New York Times in 1990. ”You don’t want trained cooks. You want kids off the street. Within a few weeks, they are the best pizza cooks in the world.”

Obviously, New Hampshire isn’t close to being the Soviet Union. (Burlington, Vt., is another story.) But New Hampshire is not as “live free or die” as Granite Staters would like to believe. 

Too many laws and ordinances here would look familiar to the Moscow bureaucrats who thought pizza cooks ought to be highly educated, credentialed and government approved. 

Recent legislation offers multiple examples.

Current law requires bars and restaurants to apply to the Liquor Commission for permission to serve drinks in common spaces such as sidewalks or parking lots, then also get permission from their local government. 

There’s no need for this double approval. Permission from the local government, is enough. Yet it took a global pandemic to convince lawmakers that this requirement should go.  

When the pandemic hit, already short-staffed nursing homes couldn’t fill positions to assist nurses because there weren’t enough licensed nursing assistants. 

Imagine telling the family of a nursing home patient that you’re sorry, but their loved one has to go with less care because the state has decreed that no care at all is better than care from someone who lacks the most prestigious credential. 

It took an emergency order to allow nursing homes to hire and quickly train unlicensed nursing assistants (called temporary health partners) to work under the supervision of licensed nurses. 

Senate Bill 155, which a committee of conference approved with amendments on Monday, would fix those and some other burdensome regulatory requirements.

Senate Bill 133, also approved by a committee of conference on Monday, addresses a few other occupational licensing laws. One fix is to open a path to licensure for the temporary health partners allowed in SB 155. 

Anyone who worked as a temporary health partner for at least 100 hours as a result of the pandemic would be considered as having completed a nursing assistant training course and would be eligible for licensure as a nursing assistant.

Associate teachers at child day care centers would get a similar break if SB 133 becomes law. The bill would allow 30 hours of “documented life experience” to substitute for 30 hours of “training in child growth and development.”

Also getting a break would be small restaurants and cafes. State law requires licensed food service establishments to have a “Certified Food Protection Manager.” The bill would let the CFPM (that doesn’t sound Soviet at all) for small operations be on call. 

The bill also would include psychologists in the list of medical professionals who can engage in telemedicine. (It’s crazy that this wasn’t allowed before.)

Then there are kids’ lemonade stands. Licensing kids’ lemonade stands would seem like a Moscow idea. But local municipal ordinances that require food vendors to obtain permits or licenses usually don’t have an exemption for children selling soft drinks in their own yards. 

Though there have been no news stories of police shutting down kids’ lemonade stands in New Hampshire, technically the stands are illegal if ordinances don’t specifically exempt them.

That’s why House Bill 183 would create a state-level exemption for children age 14 and younger who sell soft drinks from their own property. It establishes under state law that the only permission kids need to set up a lemonade stand is from their parents. (The House concurred with the Senate version last week and awaits Gov. Chris Sununu’s signature.)

These small changes would make New Hampshire a bit freer by slightly reducing the level of government permission needed for certain commercial practices. Other bills have addressed other areas where the pandemic revealed certain regulations to be entirely unneeded, even harmful. 

And yet, as this legislative session winds down, it’s remarkable how little has changed. The state of emergency is over. The pandemic is receding. But the state’s thick net of rigid regulations remains largely intact. 

Most changes were made on the margins. There was no comprehensive rewriting of occupational licensing laws or business regulations. Even after a wave of restaurant closures, lawmakers couldn’t bring themselves to allow cocktails to go. Massachusetts will legalize to-go restaurant cocktails before New Hampshire does. 

State laws and local ordinances remain run through with the presumption that people can’t figure out how to engage in economic activity safely unless they first obtain government permission and government-mandated training. 

A lot of good changes have been made. But we still can’t let go of the notion that 424 legislators should tell the pizza parlor how to make pizza. 

When Gov. Chris Sununu announced the end of the statewide mask mandate on April 15, the seven-day rolling average of positive COVID-19 cases was 411.6, the number of positive cases in the state was 3,763, and 130 people were hospitalized with COVID-19. 

By June 8, the number of known COVID-19 cases had declined by 91% from April 15, hospitalizations had declined by 78%, and the seven-day average of new cases had declined by 88%. 

Only 28 people were hospitalized on June 8, and only 322 known cases existed in the state.

Going back to the height of the pandemic in New Hampshire, the drop is even more dramatic. 

  • The number of new infections has dropped by 97.5% from its December 3 peak.
  • The seven-day rolling average of infections has dropped by 94% from its December 8 peak.
  • Hospitalizations have dropped by 92% from their January 1 peak. 
  • The seven-day rolling average of COVID-19 deaths has dropped by 88% from the peak, which was reached on both December 26 and January 7. 

Vaccinations have changed the state of the pandemic in New Hampshire, dramatically reducing the number of hosts for the virus to infect, and providing protection to the most vulnerable populations. 

Nearly 60% of the state’s population has received at least one vaccine dose and 50.7% have been fully vaccinated, according to the state’s COVID-19 dashboard.

By any measure, the COVID-19 public health emergency in New Hampshire is over. 

Gone with it are the justifications for a state of emergency.   

When Gov. Sununu declared a state of emergency on March 13, 2020, his executive order stipulated the following concern (among others), that “if COVID-19 spreads in New Hampshire at a rate comparable to the rate of spread in other countries, the number of persons requiring medical care may exceed locally available resources, and controlling outbreaks minimizes the risk to the public, maintains the health and safety of the people of New Hampshire, and limits the spread of infection in our communities and within the healthcare delivery system.”

The declaration stated that “under RSA 4:47, III, the Governor has ‘power to make, amend, suspend and rescind necessary orders, rules and regulations’ to carry out emergency management functions in the event of a disaster beyond local control.”

State law does give the governor those powers — when there is a state of emergency. 

RSA 21-P:35 VIII defines “state of emergency” as “that condition, situation, or set of circumstances deemed to be so extremely hazardous or dangerous to life or property that it is necessary and essential to invoke, require, or utilize extraordinary measures, actions, and procedures to lessen or mitigate possible harm.”

Though COVID-19 still exists in the state, its presence no longer presents a situation so extremely dangerous that “it is necessary and essential” to invoke “extraordinary measures” to mitigate the harm. 

Further vaccinations will continue to reduce infections, hospitalizations and deaths. 

When a state of emergency ends, all of the emergency orders end with it. Many of those orders nullified regulations that were never needed and that interfered with both medical and business innovations. Rules limiting pharmacists’ scope of practice, preventing hospitals from hiring unlicensed helpers, preventing telemedicine and the practice of medicine by retired physicians, and preventing businesses from adapting by offering sidewalk dining or alcoholic beverages to go are just a few of the regulations lifted by emergency orders.

Because these and other allowances would disappear as soon as the emergency ends, the governor might have an interest in keeping the state of emergency in place a little longer until pending legislation making such emergency orders permanent is adopted. For example, a bill is pending that would let restaurants continue outdoor dining in common areas such as public sidewalks. If the emergency is lifted before that passes, restaurants would have to close those popular outdoor seating areas immediately. 

But the threat that prompted the emergency declaration last year clearly is gone, and prolonged extensions of the state of emergency no longer can be justified.

Summer weather is here, and restaurants from Portsmouth to Hanover are opening up for outdoor dining on streets and sidewalks. But unless the Legislature acts, those popular outdoor seating areas are in jeopardy when the state of emergency expires. 

State law doesn’t expressly allow holders of liquor licenses to add service in common areas, such as public sidewalks or parking lots. The relevant statute (RSA 178:24) addresses expansion of service into areas license holders control, but not into public spaces.

On May 31, 2020, Gov. Chris Sununu allowed restaurants to offer outdoor dining under Exhibit C of Emergency Order 40. (Local approval is required if the expansion is into a shared space, such as a sidewalk.)

The purpose was to give restaurants a chance of surviving the pandemic. People stopped going to restaurants when the pandemic hit last year, then the governor ordered indoor dining rooms closed. When they opened back up, people were reluctant to return. Allowing outdoor dining was intended to authorize restaurants to serve their customers in a way that is common in many other parts of the world, but not in New Hampshire. 

(We use the common term “outdoor dining” here, but really what the state’s regulating is the service of alcohol.)

Of course, the big question is: Why does state law interfere with sidewalk dining (drinking) in the first place? Why not just clarify that liquor license holders are not prohibited by the state from expanding into common spaces?

Senate Bill 155, as amended by the House, would do that. 

The House-passed version states that “a licensee may expand into a shared space, such as a sidewalk or street, with the approval of local officials.” The Senate version extended the temporary allowance for outdoor dining for another two years.

For the House amendment’s permanent authorization to become law, the Senate would have to agree to the amendment. The bill could come before the Senate for a vote on Thursday. 

In addition to allowing outdoor dining for liquor license holders, SB 155 would codify several other provisions contained in Gov. Chris Sununu’s COVID-19 emergency orders.

  • It would create a new legally recognized medical occupation called a “Temporary Health Partner,” which is essentially a nurse’s aid. When the pandemic hit, hospitals were short-staffed but could not bring in unlicensed assistants just to help with simple tasks. This would let medical providers hire helpers who would work under a nurse’s supervision. 
  • It would authorize the emergency medical licensure of various types of medial professionals, such as doctors who let their licenses expire within the last three years, and nursing students. 
  • It would let pharmacists sell COVID-19 testing kits and administer the tests. 
  • It would let out-of-state pharmacies providing investigational drugs to New Hampshire patients to be licensed as mail-order pharmacies temporarily for COVID-related reasons.
  • And it would let summer camps that temporarily closed for COVID-related reasons maintain their status under local ordinances as a continuously operating camp. It basically prevents their grandfathered status from being revoked because they closed during the pandemic. 

The bill offers a nice introduction into the world of unneeded state regulations. It would remove just a few of the many state laws that prohibit the private sector from serving customers in ways that lawmakers of the past either did not anticipate or did not want to allow, for whatever reason.  

If it passes, sidewalk dining could become a permanent part of New Hampshire life.

Temperatures are expected to hit 90 degrees in much of New Hampshire this week. The state’s largest school district closed Monday on account of the heat. Other school districts are letting out early. What will kids be doing? Some of them are sure to set up lemonade stands. Technically, that would be illegal in many communities unless the children obtain a permit first.

It’s not that communities specifically target kids’ lemonade stands. It’s that municipal ordinances that require permits to sell food or drinks typically don’t contain exemptions for children. 

In other states, police have been called to shut down unlicensed lemonade stands. Stories in recent years from Colorado, Texas and New York received national news coverage, which prompted legislators in New Hampshire and other states to propose laws exempting child-operated soft drink stands from local permit requirements.

House Bill 183 would do that in New Hampshire. It has passed the House and Senate in different forms and is back for consideration in the House, which meets on Thursday. 

The House version exempted people up to age 18 who sell soft drinks from municipal vendor permit requirements. 

The Senate version exempts people under the age of 14 who “are selling soft drinks on family owned or leased property.” 

(The “soft drink” language is intentionally broad enough to cover children who might sell apple cider, powdered sugary drinks, canned soda or other soft beverages instead of lemonade.)

Under the Senate amendment’s language, children selling lemonade on public property (say, at a sports field, basketball court or public park) would still have to obtain a permit if a municipality required one. 

Both the House and Senate versions of the bill met with strong opposition. In the House, 163 members voted against it. On the other side, 10 senators voted against it. 

A major argument against the bill was that no one could produce a case of police shutting down a child’s lemonade stand in the state. Therefore, it was argued, the bill isn’t needed. 

However, the lack of a publicized arrest lemonade or stand shut down does not mean that police interactions aren’t happening. It likely means that officers are exercising their discretion and letting legal infractions slide. 

Several years ago, the author of this story had a police officer stop at his child’s lemonade stand to ask if we had a permit (we didn’t) and to inform us that we probably needed one. But he didn’t order us to shut down the stand. 

The argument that police have not enforced the law is no defense of the law. Having permit requirements that no one intends to enforce is folly, not good governance. What’s the point of keeping broad and enforceable regulations if no one ever intends to enforce them? 

The obvious answer is that municipal officials intend to reserve the power to enforce these ordinances at their discretion should they encounter a situation in which they feel the need. In other words, they intend to enforce these ordinances selectively, rather than apply them uniformly. That is a recipe not only for sewing distrust of government, but also for biased policing.  

The New Hampshire Municipal Association in fact testified against HB 183 by simultaneously arguing that municipalities “are not going to try and regulate kids lemonade stands” and that municipalities would regulate the stands on a case-by-case basis “if kids are doing something that is unsafe and the police should be able to come along and ask them to move,” as described by the committee hearing transcript.

Keeping a broad ban on unlicensed lemonade stands in place on the off chance that police might one day need to tell kids to stop doing something unsafe (something unrelated to the sale of lemonade) offers an extremely weak case for keeping such bans in place. 

License and permit requirements often are drawn too broadly, and legislators legislators are taking notice. For example, it has long been a criminal offense for anyone to cut hair without a state license, even if doing it at home on one’s own friends and family members. 

Legislators recognized this problem (after the Josiah Bartlett Center pointed it out) and this year passed a bill to decriminalize unlicensed hair cutting that isn’t done for money. 

Local food vendor permit requirements often go too far as well, covering children who sell drinks from their own yards. 

House Bill 183 would prohibit these municipal food vendor permits from applying to minors under the age of 14 who sell soft drinks from property their family owns or leases. It is narrowly drawn so that it still allows municipalities to control vending on municipal property and when done by high school students. 

It is one of the bills House members could take up at their session on Thursday. It will be interesting to see if it continues to meet such strong opposition during this week’s heat wave. 

New Hampshire voters’ trust in government and media has collapsed as a result of the COVID-19 pandemic, a St. Anselm College Survey Center poll conducted for the Josiah Bartlett Center for Public Policy has found. In addition, President Joe Biden’s honeymoon with New Hampshire voters is over, as majorities now view him unfavorably and think the country is on the wrong track. 

Among registered New Hampshire voters, 61% said the COVID-19 pandemic has made them less trustful of the government, and 60% said it has made them less trustful of the media. In both questions, 34% said their level of trust was unchanged. 

Business, however, saw those ratios reversed. Only 22% said the pandemic has made them less trustful of business, with 69% saying their level of trust is unchanged. 

“The huge collapse in trust of government and media, but not business, ought to be a five-alarm warning to government officials and journalists,” said Josiah Bartlett Center president Andrew Cline. “Trust in institutions was already low before the pandemic. It would be a mistake to maintain business as usual and see how low it can go. A serious effort to regain public trust is needed.”

Republicans and undeclared voters posted the largest drops in trust of both government and media. 

Eighty-seven percent of Republicans and 65% of undeclared voters say the pandemic made them less trustful of government. 

Ninety-two percent of Republicans and 63% of undeclared voters said the pandemic made them less trustful of media.

Democrats registered the smallest drops, with most saying the pandemic made no change in their trust of government (59%) or media (62%). 

These trust declines accompanied a significant drop in President Joe Biden’s favorability rating in the Granite State. 

Among New Hampshire voters, 52% now say they have an unfavorable opinion of President Biden, with 47% saying they have a favorable opinion. 

That’s an almost exact reversal from the February St. Anselm College poll, which found that 53% had a favorable opinion of President Biden and 46% had an unfavorable opinion. 

Biden won New Hampshire 53%-45.5% last November. 

A solid majority of New Hampshire voters (59%) now says the country is on the wrong track, with only 31% saying it’s on the right track. 

That’s up from 55% who said the country was on the wrong track in the February St. Anselm College poll. 

Gov Chris Sununu fared better, with 64% saying they had a favorable opinion of him, and 34% saying they had an unfavorable opinion. That’s down four percentage points, from 68%, in the February St. Anselm College poll. 

These results are from a Saint Anselm College Survey Center online poll conducted on behalf of the Josiah Bartlett Center for Public Policy based on online surveys of 897 New Hampshire registered voters. Surveys were collected between May 26th and 28th, 2021, from cell phone users randomly drawn from a sample of registered voters reflecting the demographic and partisan characteristics of the voting population. The survey has an overall margin of sampling error of +/- 3.3% with a confidence interval of 95%. The data are weighted for age, gender, geography, and education based on a voter demographic model derived from historical voting patterns, but are not weighted by party registration or party identification. 

The political party registration of poll respondents was 30% Democratic, 28% Republican, and 42% undeclared. 

The Josiah Bartlett Center released a previous batch of results from this poll last week. The book of tables for the poll includes both sets of questions and can be read here: SACSurveyBook JBC May 2021. 

The 2022-23 state budget approved by the Senate Finance Committee makes some significant changes from the House version. It lowers overall taxes and spending while preserving several of the House’s policy initiatives, moving some out of the budget, and adding a few new ones. The Senate’s overall two-year state spending package would spend $150 million less in General and Education Funds than the House version, reduce taxes slightly more, and rely on higher revenue projections.

With business tax revenues booming, this has allowed the Senate Ways and Means Committee to count on General and Education Trust Fund revenues of $2.89 billion for the current fiscal year, which runs through June 30. That is $160 million higher than House estimates and nearly $200 million more than Gov. Chris Sununu’s estimate from February. This higher baseline carries over into higher estimates for FY 2022 and 2023 revenues, even though the governor, House, and Senate project revenues to grow at similar modest rates over the next two years. In total, the higher revenues generated in March, April, and May of this year give the Senate more than half a billion in General and Education Trust Fund revenue that their House counterparts did not have earlier this spring. (The above graphic represents the different budget revenue projections.)

Despite several differences, House and Senate budget writers arrived at similar bottom-line spending numbers. The House version of House Bill 1 would spend $13.6 billion in total funds, with $3.46 billion of that in General and Education Trust Funds. The Senate Finance package would spend $13.5 billion total, $3.32 billion from the General and Education Trust Funds.

For more, read our policy brief (pdf): Budget Visions 2022-23- Senate

If the Senate Finance Committee’s proposed budget becomes law, New Hampshire will at last become the only Northeastern state with no personal income tax.

New Hampshire markets itself as having no sales or income tax. But that’s not precisely true. Though the state does not tax individual earned income, it does tax personal income derived from interest and dividends. That is a personal income tax. 

The budget proposed by the Senate Finance Committee would phase out the state’s interest and dividends tax over five years. (The House-passed budget and the governor’s proposed budget also would phase out the tax.)

That tax brought in $105.8 million in Fiscal Year 2018, $114.7 million in Fiscal Year 2019, and $125.7 million in Fiscal Year 2020.

That might sound like a lot of money, but for context state business taxes alone have brought in $174.5 million in additional, unplanned revenue so far this fiscal year. The state is more than $200 million in the black this year, and that’s despite a $65 million pandemic-related drop in rooms and meal tax revenue below what was budgeted. 

In eliminating the interest and dividends tax, New Hampshire would follow Tennessee, which eliminated its Hall tax (on interest and dividend income) on Dec. 31, 2020. That tax was phased out over several years, beginning in 2016.

Being situated in Northern New England, New Hampshire has numerous geographical disadvantages that make it challenging to recruit businesses, entrepreneurs, retirees, and young people. It can’t change its weather or 18-mile coastline. But it can change its economic climate.

With an eye on economic and population growth, many other states are pursuing aggressive growth strategies that involve lowering tax rates and regulatory burdens. New Hampshire’s astounding economic growth over the last several decades can largely be attributed to its singular focus on growth-based economic policies. But as Massachusetts and other states have copied states like New Hampshire, Texas, Florida, and Tennessee, it’s become more difficult for New Hampshire to stand out — and to recruit entrepreneurs, businesses, and employees. 

If it eliminated the interest and dividends tax, New Hampshire would join Alaska, Florida, Nevada, South Dakota, Tennessee, Texas, Washington, and Wyoming to become the ninth state to levy no tax at all on personal income. 

New Hampshire not only would be the only Northeastern state with no income tax, it would be the only one North and East of Tennessee. On top of New Hampshire’s already relatively competitive economic policies, that would help keep the New Hampshire Advantage alive.

Becoming truly income-tax-free would improve New Hampshire’s competitive position, not just in New England, but internationally. It would help preserve the New Hampshire Advantage in an increasingly competitive era in which states are working non-stop to attract an increasingly mobile workforce and entrepreneurial base.

More than two-thirds of New Hampshire voters support right-to-work, the Josiah Bartlett Center for Public Policy’s first public opinion poll shows. The poll also found support for Education Freedom Accounts, voter ID laws, and relaxing local housing regulations.

Asked if they would “be in favor of changing the law so that employees who don’t want to join a union could choose not to pay union fees,” 68% of New Hampshire voters said yes, and 22% said no. Ten percent said they were unsure.

“Most Granite Staters just think it’s wrong to make people pay fees to a union they don’t want to join,” Josiah Bartlett Center President Andrew Cline said.

Even Democrats broke in favor of right-to-work, the poll showed. Democrats said they would support a right-to-work law by a 44%-41% margin, just outside the poll’s margin of error. Republicans were in favor by an 88%-6% margin, and undeclared voters were in favor by a 73%-18% margin.

Every demographic group supported the passage of a right-to-work law except those who described themselves as “very liberal.” They opposed it by a margin of 29%-54%, with 17% undecided.

Twenty-seven states have right-to-work laws, which forbid employers from making non-union employees pay so-called “fair share” fees to labor unions. Employers and unions often negotiate contracts that require these fees, on the theory that non-members benefit from union collective bargaining efforts.

VOTER ID

New Hampshire voters are even more strongly in favor of requiring a photo ID to vote. Asked whether voters should “be required to show a photo ID before being allowed to cast a ballot in a New Hampshire election,” 76% said yes, and 19% said no, with 4% saying they were unsure.

By party registration, every group supported voter ID laws, with 98% of Republicans, 50% of Democrats, and 80% of undeclared voters in support. Again, only self-described “very liberal” voters were against, with 33% in favor, 61% opposed.

EDUCATION FREEDOM ACCOUNTS

A plurality of voters is favors Education Freedom Accounts, the poll shows. Asked if they would support letting families access a state-approved Education Freedom Account to pay for educational expenses outside of their assigned public school, 42% were in favor; 37% were opposed. Support was strongest among Republicans (55% in favor, 27% against), followed by undeclared voters (42% in favor, 36% against), then Democrats (28% in favor, 49% against). 

Importantly, these results closely track a poll conducted by the University of New Hampshire Survey Center in 2018. In both polls, the accounts were described in detail. That UNH poll found 40% in favor, 33% opposed, and 18% saying they didn’t know enough about the issue. 

The UNH Survey Center’s poll in March asked a very different question that did not accurately describe the accounts. Unsurprisingly, it got a different result, finding that 35% said they supported and 45% said they opposed. 

The consistency in the results for the two questions that accurately described the accounts shows that more Granite Staters support than oppose Education Freedom Accounts when they have an accurate description of the program. 

BUSINESS TAXES

Another question legislators are considering is what to do with business tax rates. We asked voters what they thought the state should do with business tax rates given the state’s large revenue surplus, which was created primarily by business taxes. The poll found that 58% of voters said business tax rates should stay the same, 34% thought rates should be cut, and only 8% thought tax rates should be raised. 

That is a very clear finding that Granite State voters do not think the state should raise business taxes. 

LOCAL HOUSING REGULATIONS

On the state’s record-setting home and rental prices, the poll found that a majority of voters (51%-29%) support relaxing some local regulations so developers can build more rental housing, and a plurality of voters (45%-34%) support relaxing some local regulations so developers can build more homes.

Democrats were the most supportive of relaxing some local regulations to build more housing. A majority of Democrats supported relaxing local regulations to build more rental housing (60%) and more single-family homes (52%). 

ABOUT THE POLL

The results are from a Saint Anselm College Survey Center online poll conducted on behalf of the Josiah Bartlett Center for Public Policy based on online surveys of 897 New Hampshire registered voters. Surveys were collected between May 26th and 28th, 2021, from cell phone users randomly drawn from a sample of registered voters reflecting the demographic and partisan characteristics of the voting population.

The survey has an overall margin of sampling error of +/- 3.3% with a confidence interval of 95%. The data are weighted for age, gender, geography, and education based on a voter demographic model derived from historical voting patterns, but are not weighted by party registration or party identification.

The full tables for these poll questions can be read here: Tables and Demos.

 

Siding with Massachusetts in a lawsuit brought by New Hampshire, the Biden administration on Wednesday told the U.S. Supreme Court that states could justify taxing non-resident telecommuters. 

New Hampshire sued Massachusetts in October over the Bay State’s effort to collect income taxes from Granite Staters who used to cross the border for work but had to switch to telecommuting during the pandemic.

The bulk of the Biden administration’s legal brief on behalf of Massachusetts addressed technical legal questions, primarily whether New Hampshire is the right party to bring the suit and whether it’s proper for the Supreme Court to take it. Media reporting of the administration’s brief focused on these issues.

But further down in the 18-page document, Acting Solicitor General Elizabeth Prelogar argued that a state could legally and constitutionally tax telecommuters who never physically entered the state’s borders. 

“New Hampshire correctly observes (Br. in Support 25-30; Reply Br. 10-13) that a New Hampshire resident who works from home will rely on New Hampshire services like police and fire protection,” Prelogar wrote. “Yet that resident’s work also may continue to depend on and benefit from services provided by Massachusetts. For example, Massachusetts and its municipalities might provide similar protections to the infrastructure and staff critical to the work of the New Hampshire resident who is temporarily working from home—such as computer servers that enable and store the employee’s work product, courts that enforce contracts, and financial institutions and transactions necessary to the work.

“And the employer located in Massachusetts, where the employee worked before (and may well return after) the pandemic, will continue to benefit from the services Massachusetts affords in the interim, thus helping to sustain the employee’s continued employment during that temporary period. A telecommuting employee’s physical location thus need not map precisely onto the location of the governmental services needed to support that employee’s work.”

Under Prelogar’s theory, a state would be justified in taxing the incomes of all people who work for a local company, regardless of where on the planet they live, because that state’s services benefit the employer, thus “helping to sustain the employee’s continued employment…”

The Biden administration’s interest in New Hampshire’s lawsuit clearly goes far beyond mere legal technicalities. The administration has sided with Massachusetts on the merits and has signaled that the U.S. government sees nothing wrong, either morally or constitutionally, with a state’s cross-border taxation of non-resident telecommuters. 

The dire state of New Hampshire’s housing shortage is illustrated in the New Hampshire Housing Finance Authority’s just-released spring Housing Market Snapshot. 

The median home price in New Hampshire hit $362,000 in April, up 16% from last April’s median price of $313,000. 

Last April’s housing snapshot showed that in March of 2019, the median was just $275,000. In just two years, the state’s median home price has jumped by $87,000.

Migration caused by the COVID-19 pandemic is not the primary cause of this increase. The report shows a roughly 5% increase in home buyers from Massachusetts and a much smaller bump in buyers from other states in 2020. 

The real culprit is supply. 

The number of new building permits issued in New Hampshire collapsed in the five years from 2004 to 2009 and has not recovered. In 2004, more than 500 permits for single-family homes and more than 200 permits for multi-family housing were issued in the state. By 2009, barely more than 100 single-family home permits were issued, and multi-family permits were in the low double digits.

Since 2009, the number of issued permits has climbed slowly but has not come close to its early 2000s levels. A little more than half as many permits are being issued annually than in the early years of this century. 

One way to think about the numbers is that builders were constructing hundreds more homes each year in New Hampshire when the hit TV show “Friends” ended its run than when “The Big Bang Theory” ended its run. 

Fewer homes being built means fewer homes on the market. There were more than 8,000 homes for sale in the state in May of 2018. This May, there were 4,613. 

Last spring, there was a 1.6 month supply of homes on the market, including a 1.1 month supply of homes priced less than $300,000. 

This spring, the overall supply has fallen to 0.6 months and the supply of homes priced less than $300,000 is down to 0.4 months. 

The only way out of this housing shortage is to build more homes.