When the Legislature blew into town last January, there was lots of tough talk about Governor Little trampling the rights and freedoms of Idahoans because he urged that they mask up and socially distance. Much was said about the Covid-19 pandemic being overblown, or not even a real pandemic. Some claimed that the virus had been whupped, so everyone had a constitutional right to get back to business as usual.
One politically ambitious Representative said he had a handful of bills designed just for the purpose of cutting the Governor down to size by trimming his emergency powers. A number of proposals were dumped into the legislative hopper, but most fell by the wayside when they were subjected to close scrutiny. For example, a bill to prevent officials from mandating the wearing of masks suffered some indignity when it became apparent that this posed a problem for surgeons in the operating room.
Two measures are still alive and kicking–House Bill 135 and Senate Bill 1136. Both suffer the same constitutional defect and should be summarily dispatched. Both bills seek to limit a Governor’s ability to continue an emergency or disaster declaration beyond 60 days without legislative approval. The legislative stamp of approval would come through passage of a concurrent resolution. The problem is that a resolution does not carry the force of law. In effect, the bills seek to confer upon the Legislature powers it does not have under the Idaho Constitution. That is, the ability to make laws without the signature of the Governor.
Attorney General Wasden prepared a thoughtful analysis of House Bill 135, pointing out this and other potential constitutional violations. Even though those concerns had been raised in debate, the House proceeded to pass the bill before the AG’s review was completed. The legislation now awaits action in the Senate. And, despite knowing of the constitutional flaws in Senate Bill 1136, the Senate later passed that bill, which now is pending on the House amending order.
These bills were premised on the false narrative that the Governor was acting in a dictatorial manner in responding to the pandemic. In actuality, he was following guidelines issued by the Trump Administration. He could and should have issued a statewide mask mandate early on, but declined to take that step. If anything, he did not go far enough to stop the spread of the virus, but he certainly did not overreach.
Infectious disease experts began warning in late January of a potential new wave of infections starting this March as a result of lax precautionary measures and new disease variants. Many legislators pooh-poohed the possibility, claiming that the danger was over. Well, at least until it became apparent in mid-March that it definitely was not and legislative leadership wisely decided that a two-week recess was necessary to protect those in and around the Capitol.
Now that the Legislature is resuming its work, perhaps the wind will have been taken out of the sails of those promoting these two constitutionally obnoxious bills. After all, the coronavirus was not defeated and further protective measures were necessary. Neither of the bills will solve any existing problem. Neither is worth tying up the courts with litigation or hamstringing the Governor’s efforts to deal with the tail-end effects of the Covid-19 pandemic. Surely, the Legislature has better things to do than beat these dead horses.
