Can the Lt. Governor take over if the Governor steps across the State line?

Idaho made headlines across the country when wanna-be governor Janice McGeachin signed an executive order on August 5 to prohibit mandatory Covid-19 testing in our schools. Although nobody was advocating such mandatory tests, McGeachin could not resist the opportunity to try to score some political points by usurping gubernatorial power. She claimed she has the right to rule our State whenever Governor Little steps across the state line. It just ain’t so.

The Idaho Constitution could be more explicit on the issue, but common sense tells us the Governor does not lose the power to govern every time his foot crosses the border. The Constitution says that the Lt. Governor can take over if the Governor dies, resigns, gets impeached, is convicted of “treason, felony, or other infamous crime,” or in case of his “absence from the state.”

At first glance, a court would wonder how such a trivial matter as leaving the state for a short period of time could equate with the other serious conditions that would switch governmental control to the second chair. The Constitution then says that power goes back to the Governor when the “disability shall cease.” The constitutional framers back in 1889 obviously meant that “absence from the state” would have to be coupled with a “disability” to govern before the second banana could take over.

That interpretation makes sense when you think of the framers’ experience at the time they were drafting the Constitution. During the twenty-seven years that Idaho was a territory, sixteen men were appointed as Territorial Governor by the President. Four of them never took office, six stayed for less than a year, only eight served for more than a year. One grabbed forty-one thousand dollars from the treasury and skedaddled to Hong Kong and Paris.

Even if a Territorial Governor actually stayed around to perform the job, an absence to conduct business in Washington could take them out of state for weeks and, because of poor communications, they would have been unable to govern. That is likely why the framers coupled an inability to govern with the conditions that would place governmental power in the Lt. Governor’s hands. With instantaneous communications today, our Governor could even run the State from Elon Musk’s rocket ship.

Governor Little says that McGeachin did not have the authority to issue her pointless ban on Covid testing, or her earlier and equally-meaningless order prohibiting mandatory masking, because he was not “effectively” absent from the State. That is, he was physically outside of Idaho but was not in any way disabled from governing. The Missouri Supreme Court has interpreted a clause similar to Idaho’s to require a Governor’s “effective absence” from the state before the Lt. Governor can run amok. It is clearly the most legally sound interpretation of the language.

Attorney General Lawrence Wasden recently released a scholarly analysis of the issue, pointing out the arguments on both sides. As usual, Lawrence approached the question in a dispassionate manner, like competent lawyers must do. He concluded that a reviewing court could determine that Governor Little’s position is correct.

It is not likely that the issue will be litigated in Idaho because the Governor can simply undo whatever McGeachin does while he’s gone, much like a patient parent disciplining an impetuous child upon returning home from work. Should McGeachin do something that cannot easily be undone, like appointing one of her radical supporters to a public office or spending public funds for an unauthorized purpose, the issue will be brought to court. She can rest assured of that. It is more than likely that she will conclusively lose the argument in a court of law.

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4 thoughts on “Can the Lt. Governor take over if the Governor steps across the State line?”

  1. Jim,

    After reading your expose on the Lt Gov, her antics, etc…I’m curious if she in fact tried to attempt an executive order that was farther over the “gray area line” pointing to unconstitutional, but not quite provable, challenged, etc…Would the Secretary of State Denney be able to abstain from signing the Exec Order, if advised by Attorney General? Or does the Secretary of State have to sign all Orders no matter how crazy/gray area they are? If in fact a proposed Exec Order is blatantly unconstitutional can a Secretary of State abstain from signing it? Just Curious how that works…I honestly became quite disappointed in Denney when I saw his signature: https://lgo.idaho.gov/category/executive-order/ but realized maybe he has no choice? Or is he in fact on the antics?
    Lastly, I sincerely believe Janice does not have the mental capacity or background to come up with these types of gray area challenges on her own…so who is advising her, encouraging her and aiding her in these ridiculous challenges? I think there are a-lot of us here in our great state who have sat by silently watching this woman make a mockery of our system and are ready to address Janice and her overt disregard for rule of law, respect to the state Constitution as well as the people who have been behind the scenes starting things up so to speak. I for one would like to know who these people are so I can be better informed whence they “pop up” somewhere else, backing yet another crazy agenda, whether for Janice or someone else.

    1. Thanks for your comments, M. I think McGreachin is being egged on by the Idaho Freedom Foundation, her gun-toting Real 3%ers and other radical supporters. I don’t think it is going over well with the broader electorate. She is providing us with lots of reasons to reject her at the polls. As far as the Secretary of State’s responsiblity to certify and file executive orders, I think if there is a question as to its legality, an opinion from the Attorney General should be requested. If the AG finds it to be improper, the SOS should decline to certify and file. The matter would then go to court.

  2. I don’t think she cares what happens after she grandstands & makes up useless, deceptive lies. She has to stay in the headlines. She is very dangerous but that is what her supporters want. She is going to play the martyr & claim that she is right & that’s why “everyone” is trying to shut her down. It is super important that everyone get out & vote in the primary & general election!!!! I know that I, a voting citizen in Idaho, deserve so much more in our state that McGeachin & her sidekick crazies!! McGeachin, Giddings, Hanks, etc……

    1. Thanks, Karen. I agree that the answer to the dysfunction in Idaho government is for everyone to get out to vote in the Republican primary. There is a real hunger across the State to get back to responsible government and it starts in the primary. McGeachin and her cohorts will be on their worst behavior in the next legislative session and I think it will help convince the voters that they need to go.

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