Idaho lawmakers may not be able to lift COVID-19 restrictions. Here’s why

BOISE (Idaho Statesman) — Since Idaho’s legislative session began last month, top Republican lawmakers have been focused on two goals: Remove the COVID-19 restrictions and strip the governor of some emergency powers.

They introduced several bills and resolutions in a coordinated effort to accomplish those goals. One resolution declared it would put an end to the COVID-19 emergency declaration. Another claimed to preserve federal funding while doing it. Now, after Gov. Brad Little lifted many of those restrictions, they introduced a new resolution that tries to terminate the public health orders attached to the declaration.

There’s also a question of whether the governor’s public health orders act merely as “guidance” rather than hard rules, because local law enforcement agencies have the discretion to decide whether to enforce the order. Regardless, local jurisdictions, such as Ada County, have used the governor’s orders to create their own public health restrictions.

RELATED: House passes resolution to quash COVID-19 limits on gatherings

Rep. Brent Crane, R-Nampa, who chairs the House State Affairs Committee, Friday co-sponsored another resolution on gathering limitations. Crane has said those resolutions could circumvent the governor’s actions and pass more quickly. Unlike bills, resolutions do not need Little’s approval and would not be subject to vetoes.

But multiple attorneys told the Statesman the resolutions hold little to no weight. After inquiries to several former attorneys general and constitutional lawyers, four attorneys said resolutions likely couldn’t lift the COVID-19 public health orders. The Statesman couldn’t find an expert who sided with legislators.

While an Idaho statute states that legislators can end an emergency declaration, several experts say that statute wouldn’t stand up to constitutional challenges in the Idaho Supreme Court.

ATTORNEY GENERAL’S OPINION

Rep. John Gannon, D-Boise, sought the opinion of the attorney general about whether resolutions could pass laws. An analysis from the attorney general’s office last week said they couldn’t.

Brian Kane, assistant chief deputy at the attorney general’s office, in an analysis wrote that the Idaho Legislature would need authority granted by the state’s constitution — not just Idaho code — to remove an emergency declaration. Laws would need to be presented to the governor.

RELATED: Idaho House OKs resolution to end Gov. Little’s coronavirus emergency declaration

Kane wrote that resolutions “cannot be considered to have legal effect other than stating a policy preference of the Legislature, or of the chamber that has adopted it.”

Hugh Spitzer, a constitutional law professor at the University of Washington, said resolutions in most states are merely expressions of opinion and, in some states — like Idaho and Washington — can allow constitutional amendments. Those require a two-thirds vote from both chambers and a simple majority vote from the public.

But a resolution simply to lift public health orders would not be possible.

“If the legislators want to repeal COVID-19 emergency regulations, they would need to properly enact a bill and probably need to successfully override a gubernatorial veto,” Spitzer wrote by email.

SENATORS WILL NOT SHARE OPPOSING LEGAL OPINION

Senate Majority Leader Kelly Anthon, R-Burley, who co-sponsored one of the new resolutions, told the Idaho Press that senators received an opposing independent legal opinion. The Statesman has tried to see that opinion. After multiple requests for a copy, the Statesman was told to file a public records request. That records request was denied, citing attorney-client privilege. Anthon couldn’t be reached for comment.

David Leroy, a former attorney general and lieutenant governor, said he couldn’t believe senators would choose not to disclose the opinion.

“I think it’s very unusual,” Leroy said. “It’s not infrequent to have competing opinions and for legislatures to go shopping for opinions for one they like. But not to release one is generally unheard of.”

Senate President Pro-Tem Chuck Winder in an interview with the Statesman said it’s generally good practice to guard the counsel in case they end up in a legal dispute, but they may choose to share it in the future.

When asked about the attorney general opinion, Winder said the analysis didn’t deal with a specific piece of legislation but made a broad characterization. He said the orders could be construed as rules by the director of Health and Welfare that are subject to guidelines established by the Legislature.

Idaho’s statute on the State Disaster Preparedness Act states that “the legislature by concurrent resolution may terminate a state of disaster emergency at any time.”

McKay Cunningham, a constitutional law visiting professor at the University of Idaho College of Law, said a few exceptions are made for resolutions — including one that involves administrative rules. But those exceptions don’t apply to executive orders, he said.

“The question then becomes whether or not the governor’s executive orders relating to coronavirus are the same thing as an administrative regulation,” Cunningham said. “I think it’s pretty clear that they’re not the same thing.”

Jim Jones, former attorney general and a retired Idaho Supreme Court justice, said he doesn’t believe that argument would be successful.

“My thought is, they’re not going to buy that,” Jones said in an interview with the Statesman. “It’s kind of a stretch of the constitutional provision. And number two, it doesn’t make any sense.”

Jones criticized legislators for ignoring the attorney general’s opinion and dragging what he believed were unnecessary fights to the state Supreme Court that cost taxpayers money.

A FIGHT AT THE IDAHO SUPREME COURT?

Five attorneys — the current attorney general, two former attorney general and two constitutional attorneys — say that if such a legal battle makes it to the Supreme Court, the Supreme Court would likely side with the governor.

Crane said the attorney general’s opinion is just one analysis.

“I have seen attorney general’s opinions before that have not been upheld,” Crane said. “Our statute very clearly states that the concurrent resolution is one way for us to deal with these types of issues.”

Leroy agreed that the Supreme Court lately has more often favored the Legislature. But he said the state’s highest court offered the most relevant opinion in October, when the court concluded that a parole commission has the executive constitutional power to grant a pardon.

That case was similar in that it dealt with a legislative statute and a specific constitutional authority, Leroy said. He believes the AG may have offered “a useful roadmap to interpreting” the balance between the governor’s authority to issue emergency declarations and the limits of the Legislature to terminate them.

Idaho code specifically states that legislators have the power to end an emergency declaration with a concurrent resolution. But Cunningham said that provision itself fails to comply with the state constitution and goes beyond the scope of the legislative branch’s power.

State legislators have claimed that the legislative body should have more power than the executive branch. Rep. Barbara Ehardt, R-Idaho Falls, on the House floor said Idaho’s three branches of government “are not meant to be co-equal” — and that the legislative body is “the main branch of government.”

Cunningham said that kind of rhetoric is “troubling.”

“The heart of the matter is, the Idaho Legislature cannot grant itself power greater than that which is specified in the Idaho Constitution,” Cunningham said. “Otherwise, what’s to stop the Legislature from conferring all kinds of power unto itself? What’s to stop the Legislature from disbanding the judicial branch and declaring itself adjudicator of legal disputes?”

A Senate resolution to end the governor’s order of isolation, introduced by Anthon and Steve Vick, R-Dalton Gardens, and a House resolution that supports removing all gathering restrictions for school activities will both need approval from committees, then advance to a vote in the House and Senate.

Other House and Senate bills to curb some emergency powers — introduced by Vick and Assistant Majority Leader Jason Monks, R-Nampa — would need to withstand a governor’s veto with a two-thirds vote from both chambers.