Stephen Calls Judge's Order To Restart Vehicle Inspections Unconstitutional

By Michael Graham, NH Journal

CONCORD, NH — A federal judge delivered a blunt message to New Hampshire officials Tuesday: You don’t get to suspend the state’s car inspection program just because you don’t like it.

The response from the GOP lawmakers who ended the unpopular inspection mandate was just as blunt: Make us.

Not only are Republican leaders rejecting the judge’s ruling, but Executive Councilor and veteran attorney John Stephen says the order is unconstitutional and is urging Attorney General John Formella to make that case.

The fight began when Republican lawmakers pushed through a repeal of the state’s annual safety and emissions inspections in HB 2, the 2025 budget trailer bill. The repeal took effect Jan. 31.

The vendor that provides the service, Kentucky-based Gordon-Darby, filed a lawsuit — not for breach of contract, but alleging the state is in violation of the Clean Air Act. Under the act, once the U.S. Environmental Protection Agency approves a state’s air-quality plan, those provisions become part of federal law. A state cannot unilaterally walk away without EPA approval.

On Jan. 27, U.S. District Court Judge Landya McCafferty, an Obama appointee, issued an injunction against the state, ordering it to continue conducting inspections.

In response, state officials in the Department of Safety and the Department of Environmental Services asked Gov. Kelly Ayotte and the Executive Council to retroactively extend Gordon-Darby’s contract so inspections could continue.

Attorney General John Formella told councilors the program could not operate without a vendor and warned that the state would face civil penalties and possible loss of highway funds if it failed to comply with federal law.

The Executive Council voted 3-2 to reject the extension.

Within hours, the Department of Safety told Gordon-Darby its contract had ended and publicly announced the inspection program was “suspended until further notice.” Inspection stations were directed to stop issuing stickers and return unused stock.

In seeking a stay, commissioners argued the council’s vote left them without legal authority to reinstate the vendor or secure a new one, making compliance impossible.

McCafferty was not persuaded. She issued a sharply worded, 22-page order Thursday rejecting the state’s request for a stay of her original order while the state moves forward seeking remedies.

“The requested stay is denied,” she wrote. “The Commissioners have legal authority to comply with the preliminary injunction and must take all steps necessary to resume and ensure the continued implementation and enforcement of New Hampshire’s I/M program.”

She also questioned the state’s claim that the Executive Council’s vote tied its hands, noting the Department of Safety originally sent the termination letter without council approval and that the contract does not involve payments from the state treasury.

But New Hampshire officials aren’t budging.

Formella’s office issued a statement saying they are “reviewing the order to determine appropriate next steps, and our public guidance issued on Feb. 13, 2026, remains in effect.”

In a moment of legal understatement, McCafferty wrote in her ruling that her original injunction “was met with hostility by New Hampshire officials and politicians.”

That hostility continues.

“Of course, an unaccountable federal judge continues to side with self-interested foreign corporations against the will of the people,” said House Majority Leader Jason Osborne, R-Auburn. “Judges are not legislators, and they do not get to determine the law in this state. New Hampshire has kicked Gordon-Darby to the curb, and we have no intention of ever going back. Vehicle inspections are dead in the Live Free or Die state, no matter what delusion this judge is under.”

McCafferty also called out Executive Councilor John Stephen, though not by name, for saying that a “federal judge doesn’t have the authority to force the Executive Council to spend taxpayer money,” and that “not one dollar leaves the Treasury without Executive Council approval.”

Stephen responded on Thursday, accusing the judge of violating the anti-commandeering doctrine. Under the Tenth Amendment, the federal government cannot treat state governments as mere “instruments” or “subdivisions” of the federal government, Stephen told NHJournal.

He mentioned several U.S. Supreme Court precedents, including Murphy v. NCAA, when the court struck down a federal law banning states from authorizing sports gambling. Justice Samuel Alito wrote that the law was unconstitutional because it dictated what a state legislature could or could not do regarding its own laws.

“The Murphy case is directly on point, in my opinion,” Stephen said. “I am writing Attorney General Formella, urging him to challenge the judge’s order as a constitutional question. Let’s make this a landmark federalism case.”

For legislators like Rep. Henry Giasson, R-Goffstown, the concern is protecting Granite State drivers from the hassle and expense of the inspection program.

“This legislation is wildly popular,” Giasson told NHJournal. “Meanwhile, we’re getting sued over the Clean Air Act by a Kentucky company that doesn’t even breathe our air.”

Giasson’s message to New Hampshire residents?

“House Republicans don’t want a government-mandated third party between you and your ability to get to work. We are standing firm for the people of New Hampshire, and we are not going back.”

This story was originally published by the NH Journal, an online news publication dedicated to providing fair, unbiased reporting on, and analysis of, political news of interest to New Hampshire. For more stories from the NH Journal, visit NHJournal.com.