H135, S1136, and the Constitutionality of the Governor’s Emergency Power
Yesterday, Governor Little announced his intention to veto House Bill 135 and Senate Bill 1136. Both pieces of legislation are intended to curb the Governor’s overreach in emergency situations.
I listened to Mr. Little’s announcement and read his statement. In his speech, Governor Little affirmed that the Constitution of the State of Idaho grants him the power to respond in an emergency. I had previously read our State Constitution. I decided to reread it. Nowhere in our State Constitution is the Governor granted such power.
Article IV of the Idaho Constitution delineates the Executive Branch. Article IV has 20 Sections, and none of them indicate that the Governor has the power or authority to respond in emergency situations.
Emergency powers are found in Article III instead, which is the power granted to the Legislative Branch.
Where can the governor claim power during a disaster or emergency? The Legislative Branch did in fact pass the Disaster Preparedness Act giving power to the Governor during a “disaster emergency.”
Article II of the Idaho State Constitution states that “no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others.” In other words, it is unconstitutional for the Legislative Branch to transfer powers to the Executive Branch. The Disaster Preparedness Act is unconstitutional.
Setting aside the unconstitutionality of the Disaster Preparedness Act, if the Legislative Branch gave certain powers to the Governor, then they can also modify that delegation. Or they may reclaim it altogether. Both the House and Senate are within their rights to pass H 135 and S 1136.
There remains one additional argument. What happens in case of disasters or emergencies? The current Covid-19 emergency has been in effect for over a year. After a prolonged period, emergency declarations are no longer credible.
In the history of our nation, there is precedent for the Executive Branch taking decisive action in emergency situations. But there are two main elements that distinguish prior precedent from Governor Little’s actions.
First, such actions were short. Second, the Executive Branch did not request additional resources; whereas, in the current situation, the emergency response budget amounts to over 40% of the entire state budget.
In summary, the claim made by the Governor that the bills he is vetoing are unconstitutional is, at best, disingenuous. The Idaho Legislature, in passing this legislation, is responding to the will of the people, who have expressed their dismay with government overreach and the unlawful restrictions that have been placed on their God-given rights. Constitutionally, the Legislature is not just within its rights to act but is morally bound to do so.
The Idaho Legislature should override the Governor’s vetoes. These bills are necessary to return Idaho’s government to its proper role, the protection of Idahoans rights.