The New Hampshire Senate recently killed HB357, which would return the authority to require vaccines to the legislature instead of giving broad authority to the Department of Health and Human Services. While New Hampshire’s DHHS has shown more restraint than the health departments in other states, that has been a choice.
The reasons given to kill the bill were that Health and Human Services hasn’t been aggressive in its requirements, and that if it gets too aggressive, JLCAR can step in and stop it.
Formally, JLCAR is the Joint Legislative Committee on Administrative Rules, and I am the current vice chairman and a two-term member. It is our job to review the rules created by executive departments to make sure that the rules are within the authority granted by the legislature, consistent with legislative intent, and that all significant costs have been considered. There is also a clause to reject a rule that is contrary to public interest, but given that “public interest” usually ranks the group over the individual, it is unlikely that objections to any vaccine mandates can be successfully argued on that basis.
Senators arguing against this bill have highlighted the risk of giving the power to mandate vaccines to the legislature would have forced COVID shots under Democrat control, and that leaving this choice to the commissioner of HHS prevents unintended consequences. I contend that under Democrat control, New Hampshire would have seen the same mandates as other states and this would have happened through existing rulemaking powers without the need to pass a law to allow it. But let’s be clear: lawmakers had the power to mandate the COVID shot then, and they have the power to mandate vaccines now.
The senators spoke to the slow process of the legislature, and the ability to change problem rules more quickly than to change problem laws, but this is false. To correct an administrative rule preventing doctors at the Veterans Administration not licensed in New Hampshire from authorizing disability placards for disabled veterans, the faster process was filing a bill, not changing the rule.
The legislative process is slow, but that is a feature and not a bug. If the commissioner today decided a certain vaccine was needed to protect public health, an emergency rule with the full force of law would be effective the moment it was filed.
The commissioner currently has the legal authority to require any vaccine at any frequency to attend schools or daycare. Yes, even the COVID vaccine.
To increase childcare openings, the commissioner could file a rule on Monday to require COVID vaccination for all children six months and older to attend childcare along with a rule revoking the license of all childcare facilities that don’t immediately comply. It would be effective and enforceable immediately, and because the department already has authority to inspect childcare vaccine records the agents could start knocking on doors and closing facilities the minute the rule is filed.
JLCAR has no standing to stop such a rule, and the only process to overturn such a rule would be to remove rulemaking authority or to specifically prohibit what the emergency rule seeks to do.
An emergency rule only lasts 180 days, so these rules would go through the normal process which includes public hearings before they become permanent. In the past, these hearings have been hard to find; however, a listing of upcoming hearings is now posted at the General Court website through a link in the weekly Rulemaking Register.
If all of this makes your head spin, I understand. The process to turn a bill into a law is far more transparent and easier to navigate for the public and for legislators. This is why I cosponsored House Bill 357.
There is still the opportunity to pull back the unchecked power granted to the commissioner to force kids to get COVID, rabies, or other vaccines to attend school or childcare.
I ask you to join me in asking the New Hampshire Senate to reconsider their position on how vaccine policy should be made in New Hampshire by agreeing to pass this legislation when they get a second bite at the apple with Senate bills to which this policy has been added.
