New Hampshire Attorney General Joe Foster faces possible lawsuit from New Hampshire GOP corruption fighter Andy Martin over Foster’s immigration activism
Andy Martin, J.D.
Adjunct Professor of Law
P.O. Box 742
Manchester, NH 03105-0742
Tel. (603) 518-7310;
Fax (866) 214-3210
February 1, 2017
Hon. Joe Foster
33 Capitol Street
Concord, NH 03301
Re: Potential lawsuit against you for ultra vires actions
Dear General Foster:
You have recently made some very inflammatory and, frankly, irrational statements concerning the President Trump’s efforts to protect the United States from immigration problems. With all due respect, I believe that while you are free to present your views as a private citizen, as an appointed official of the State of New Hampshire whose public office is subject to and governed by statutes, you are not free to waste state assets propagating left-wing Democratic Party propaganda.
I am therefore writing to give notice that if you follow through on your plans to apparently join frivolous out-of-state litigation by other state attorneys general with too much time and money on their hands, and divert New Hampshire resource and the time of assistant attorneys general on your staff, I will file a lawsuit to enjoin you from taking part in such activity. I believe your actions would be ultra vires to the limited rights and duties embodied in your office. Again, I recognize that as a private citizen you are free to pop and toot as a goofy liberal Democrat; as a public official paid for by New Hampshire taxpayers you have to respect the limits of your official position and not use your office to grandstand or vindicate a political agenda.
- The State of New Hampshire
The State of New Hampshire is the embodiment of “small government” and limited government. We are not New York or California or one of the other loony left states. Our state government is provided by the taxpayers through the General Court and state constitution with limited revenues, not a credit card for unlimited excursions into public expenditure.
Like most New Hampshire citizens I am the product of immigration. My maternal grandparents immigrated to Manchester over 100 years ago, see AndyMartinNewHampshire100.com. So I am not anti-immigrant. But at a time of increasing worldwide terror risks, I am pro-national security. I am very comfortable with a “time out” to immigration from unstable nations lacking robust government institutions to put down terrorist threats.
- The Office of Attorney General
Before sending this letter I spent time doing research on the New Hampshire Constitution and New Hampshire Statutes. My due diligence did not find anything in Title 1, Chapter 7 of the New Hampshire Statutes that authorizes you to engage in litigation concerning the rights of foreign individuals or others who may not have immediate disputes with the State of New Hampshire. Therefore, your announcement that you apparently contemplate joining frivolous lawsuits filed by other state attorneys general is ultra vires to your office. If private entities have legal claims under the president’s policy, they are free to pursue them. I do not believe New Hampshire taxpayers have claims against President Trump’s immigration policies.
- Your statements concerning President Trump
You accused President Trump of engaging in an “unconstitutional assault” which violated “principles that are fundamental to our democracy.” Other than an isolated number of foreign citizens that served the military and were entitled to preferential treatment entering the United States, no foreign citizen has a generalized “right” to enter the United States. People with Green Cards and valid visas were clearly inconvenienced and I hope that the federal government will do everything possible to correct those mistakes and compensate for the unnecessary disruption. But there is simply no basis for your exaggerated and inflammatory rhetoric attacking the president. I repeat that in your private capacity you are free to make idiotic remarks. But when you use the letterhead of your public office, and the power and budget of your office, to publish doggerel, you are acting “unconstitutionally” and launching an “assault” on the rights of New Hampshire taxpayers who govern your behavior as a public official.
You need to understand that both federal statutes and the U. S. Constitution provide the president and his administration with exceptionally broad authority to regulate who enters and leaves the United States. Those powers do not accrue to your own office. The president, not you or I, gets to be the decision maker.
- The lawsuits filed last weekend
Ironically, I agree that there may have been a limited basis for the lawsuits that were filed last weekend. Like you, I am not an expert in the minutiae of immigration law. But I suspect some of the administrative action taken by the federal government did not comport with the sprit of the President’s intention in signing his Executive Order.
It is also my view, however, that substantially all of the problems created by improvident enforcement of a valid order have now been alleviated or are in the process of being alleviated administratively. Thus, the “problem” giving rise to the lawsuits is over.
On the merits, to the extent that the pending or proposed state attorneys general litigation seeks to challenge and undermine the broad authority of the president and federal government in areas of foreign relations and immigration, where presidential powers and prerogatives are paramount, the lawsuits are ultimately frivolous and will not be successful.
As a constitutional scholar I see no conflict between the lawsuits that may have had an initial basis for judicial intervention last weekend, but which are now unnecessary because the legal basis for those claims has evaporated as the government responds to the lawsuits and takes corrective action. If you do not have a constitutional scholar on your staff I would be happy to volunteer my services and opinions pro bono.
I do not consider your office under New Hampshire law to be a “roving commission to do equity,” Moushigian v. Marderosian, 764 F.3rd 123 (1st Cir. 2014). The same limits apply to your office as enunciated by the United States Court of Appeals for the First Circuit, in an opinion by Judge McCafferty who normally sits in Concord.
- The “Will of the People”
Ultimately, unless the “will of the people” reflects some unconstitutional or unlawful intention, that “will” as implemented by the president and congress should be respected. Americans voted for change, even in New Hampshire where President Trump’s electoral votes were stolen by liberal Democrats who encourage unlawful out-of-state voting in our elections.
Most Americans want limits placed on immigration and Trump’s limits were and remain reasonable. I don’t think any of us, from Trump down to the single voter, has a concrete vision of what has to be done to conclusively protect us from unwise immigration and terrorism. That’s why Trump’s order was limited in time and scope. Trump is exploring alternatives and options.
The federal government has a right to take tentative steps without being bombarded with lawsuits making grossly exaggerated claims, or by flatulent rhetoric such as your own remarks.
Reasonable people can argue – we can – as to how the president should implement his agenda. But every coffee table policy difference with President Trump is not a trigger to file a frivolous lawsuit or stage a ridiculous demonstration.
- Please help safeguard New Hampshire’s treasury
Former Governor Hassan, your boss, concealed tens of millions of dollars in state spending in order to fraudulently induce voters to support her election to higher office. She left the state in a mess. If not for the fortitude of the General Court (legislature), New Hampshire today would be another Illinois. Luckily, legislators had implemented sound fiscal policies and Hassan’s damage was limited. Nevertheless, we do not have money to waste on frivolous lawsuits over federal policies which do not concern your office.
I urge you to avoid the necessity for me to file a lawsuit by exercising the discretion that should be inherent in your office and by avoiding participation in any lawsuits seeking to malign President Trump for trying to do his job. If you proceed with your apparent course of action, I shall file suit in the Superior Court to enjoin your ultra vires activity. We may have a state judiciary that is dominated by Democrats; but even Democrats should be governed by common sense and the limits of New Hampshire law and the New Hampshire Constitution.
I am confident President Trump and his administration can both comply with the law and implement their policies without input from your office. Please do not waste our precious New Hampshire tax dollars on wild goose chases.