Bill to trim Idaho governor's emergency powers questioned

BOISE (AP) — A proposed law put forward by the Legislature to trim a governor's powers while increasing its own during declared emergencies such as the pandemic will have unintended consequences, the Idaho attorney general's office said.

The opinion written at the request of Democratic House Minority Leader Ilana Rubel and released by her on Tuesday also said portions of the proposed law are unconstitutional.

The language in the proposed law is "overly broad and could introduce legal uncertainty into the Governor and the State's authority to respond to disasters and emergencies," Assistant Deputy Chief Brian Kane wrote in the six-page document.

The legislation is spurred by anger with Republican Gov. Brad Little's response to the pandemic and lawmakers' frustration with their inability to do anything about restrictions the governor imposed to slow infections and deaths caused by the virus. Lawmakers bristled at the pandemic rules, especially a temporary lockdown and the designation of some people as "nonessential" workers.

The Republican-dominated House passed the measure 49-20 last week after three previous versions were replaced as lawmakers struggled to craft the bill.

The current version, which could be changed in the Senate, would allow a governor to declare an emergency and extend it past 60 days, but only to ensure federal funding continues. The bill would require any restrictions accompanying a governor's order to expire after 60 days unless renewed by the Legislature. Currently, emergency declarations last 30 days and a governor can simply renew them.

The bill allows the part-time Legislature to extend an emergency for 365 days.

The legislation aims to not interfere when a governor is dealing with more typical disasters in the state that tend to be localized and the result of extreme weather, wildfires or floods, and can lead to federal funds coming to the state.

However, the bill states that "declared emergencies must not restrict the right of Idahoans to work, provide for their families, and otherwise contribute to the economy of Idaho."

The attorney general's opinion notes that the provision in the bill potentially prevents "the Governor from declaring any kind of disaster emergency and imposing measures to address the emergency that affect anyone's ability to spend or make money in the state."

The proposed law would also allow the Legislature to end a declared emergency through what's called a concurrent resolution, which requires approval from both the House and Senate but doesn't require a governor's signature.

However, the attorney general's opinion said the Idaho Constitution does not give the Legislature that kind of authority. Its authority comes from lawmaking, which requires the participation of the executive branch.

But lawmakers have disagreed, saying they have the authority and citing a section of Idaho code about concurrent resolutions.

The proposed law is one of about a dozen the Legislature has put forward this session seeking to have more authority during declared emergencies.