Little challenges McGeachin’s attempts to govern while he’s out of state

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Idaho Gov. Brad Little didn’t even wait to return to Idaho before rescinding an executive order Wednesday that Lt. Gov. Janice McGeachin issued while serving as acting governor the previous day. McGeachin’s order would have banned COVID-19 testing and vaccination requirements by schools and the State Department of Education.

At the time McGeachin issued the order, Little was in Texas visiting the United States southern border with Mexico alongside nine other governors from the West.

Little issued his own executive order at 12:30 p.m. Wednesday, writing that he never gave McGeachin the authority to exercise powers in his absence.

“The lieutenant governor’s actions were without legal authority,” Little wrote in the new executive order. “I did not direct or authorize the lieutenant governor to act in any manner pursuant to Idaho Code 67-809(1). Nor does my temporary presence in Texas on official business impair my ability to represent the people of Idaho thus necessitating action by another executive to ensure the continuity of state government.”

Before he left for Texas, Little wrote McGeachin a letter saying the trip would not hinder his duties to serve as governor and he did not anticipate requiring her services as acting governor.

Efforts by the Idaho Capital Sun to reach McGeachin for comment through her office on Thursday morning were not immediately successful.

In another development Thursday, the Idaho Attorney General’s Office issued an opinion that a court could conclude that the governor’s absence from the state — a scenario when the lieutenant governor may need to take over the governor’s authority — means “effective absence” and not “physical absence.” The Sun obtained a copy of the report Thursday.

Little’s response, and the AG’s Office’s opinion, represent the latest development in the clash between the state’s top two elected officials in a rivalry that is escalating ahead of an anticipated showdown in the 2022 Republican gubernatorial primary.

This issue has to do with what happens when Idaho’s governor leaves the state and the lieutenant governor exercises power, or attempts to exercise power, as acting governor.

Little left the state Tuesday to visit the southern border with other Republican governors, in a trip his office announced on Monday.

On Tuesday, saying she was serving as acting governor, McGeachin issued an executive order banning schools and the State Department of Education from requiring COVID-19 vaccinations and tests.

“Today as acting governor I fixed Gov. Little’s executive order on ‘vaccine passports’ to make sure that K-12 schools and universities cannot require vaccinations or require mandatory testing,” McGeachin wrote on social media. “I will continue to fight for your individual liberty.”

McGeachin also inquired about how she could activate the Idaho National Guard to deploy troops to the southern border, the Associated Press reported. The AP report indicated that Major General Michael J. Garshak responded to McGeachin by telling her he was unaware of any request for National Guard assistance and reminding McGeachin that the guard is not a law enforcement agency.

As for the executive order McGeachin issued, Little repealed it in its entirety and retroactively in an attempt to make it as if the McGeachin executive order was never put in place.

“It is necessary to repeal Executive Order No. 2021-13 in its entirety to reverse the misuse of executive authority, preserve the rule of law, protect Idahoans and eliminate any confusion created by the lieutenant governor’s office,” Little wrote in his executive order.

As for the question of whether McGeachin had the authority to act in the first place, it could be a close question, Chief Deputy Attorney General Brian Kane wrote in Thursday’s opinion. Kane referenced a July 29 letter that Little sent to McGeachin while Little was briefly out of state while traveling to an event. Little said it would not hinder his ability to perform his duties as governor.

“I am not aware of any official business that will require your services in an acting governor capacity,” Little wrote in the July 29 letter. “Thus, you are not authorized to act as governor during my brief time out of state.”

The Idaho Constitution states:

“LIEUTENANT GOVERNOR TO ACT AS GOVERNOR. In case of the failure to qualify, the impeachment, or conviction of treason, felony, or other infamous crime of the governor, or his death, removal from office, resignation, absence from the state, or inability to discharge the powers and duties of his office, the powers, duties and emoluments of the office for the residue of the term, or until the disability shall cease, shall devolve upon the lieutenant governor.”

Kane wrote that Little’s interpretation of effective absence, which means McGeachin did not have authority to act as governor, “is reasonable.” For instance, a court could find that the language in the Idaho Constitution is ambiguous, Kane wrote. A court could also find that it would be absurd, given technology available today, that any physical absence from the state would make it so a governor is incapable of performing the duties, Kane wrote. After all, since his election, Little has traveled out of state to visit the White House for meetings, where he participated and was recognized as Idaho’s governor, not a private citizen.

Kane also wrote that courts in other states have addressed the issue and been split about whether absence means physical absence or effective absence.

Former Republican Gov. Butch Otter, Little’s predecessor and longtime ally, also weighed in on McGeachin’s actions involving the National Guard this week.

“One of the most significant duties of a governor is to serve as commander in chief of the Idaho National Guard,” Otter wrote in a Wednesday email to the Idaho Capital Sun and several other news organizations. “Decisions about deploying our brave men and women of the Guard must be considered with great weight and never with self gain at the forefront. The Lt. Governor’s failed attempt to deploy the Idaho National Guard to the southern border while Governor Little is out of state performing his duties as governor reveals her ignorance of the process and her true intentions – she seeks only to advance her personal political agenda, even if it means putting the safety of our Guardsmen on the line and burdening their families while they are deployed. This is not the way a Governor acts. I attended the funerals of many of our warfighters and saw the grief in their families’ faces. The Lt. Governor belittles and demeans their sacrifice by playing political games with the men and women of the Idaho National Guard and their families. It is shameful and unacceptable.”

McGeachin wrote on social media that she was not attempting to deploy the National Guard.

“Let’s clear up some misconceptions,” McGeachin tweeted Wednesday. “I did not deploy or call for the deployment of the National Guard. I inquired as to the process for deployment, should such a step be necessary. The Acting Governor should know this, but Brad continues to shut me out of the process.”

This isn’t the first time McGeachin has exercised power when Little left Idaho.

In May, McGeachin was serving as acting governor and issued an executive order banning mask mandates by the state or any unit of local government, even though Idaho never has had a statewide mask mandate in place.

Little responded by rescinding that executive order the next day and calling McGeachin’s actions a self-serving political stunt.

In 2019, when Little was out of state on a different trip, McGeachin presided over a rally of the Real 3%ers of Idaho militia group and then administered an oath to defend the Constitution to some of the members.

Following this week’s visit to Texas, Little returned to Idaho at about 10 p.m. on Wednesday, a spokesperson told the Sun.

The Idaho Capital Sun can be found at idahocapitalsun.com.