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.