Bill Description: House Bill 98 renames and redefines disaster emergencies and limits the governor's power during such times.
Analyst Note: House Bill 98 is one of several pieces of legislation introduced during the 2021 session to change how emergency situations are handled and to shift power from the executive branch to the legislative branch during such times. House Bill 98 replaces House Bills 1 and 16.
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
House Bill 98 amends Section 46-1008, Idaho Code, to limit the reasons for which the governor may issue executive orders or proclamations during a state of disaster emergency.
Specifically, the new language says that “any such orders, rules, or proclamations must be essential to protect life or property from the occurrence or imminent threat of the state of disaster emergency."
It further states, "Because all jobs are essential, declared emergencies must not restrict the right of Idahoans to work, provide for their families, and otherwise contribute to the economy of Idaho. Such orders, rules, and proclamations must be narrowly tailored to their purposes and not restrict jobholders by job type or classification."
House Bill 98 amends Section 46-1008, Idaho Code, to limit the length of a "declared state of disaster emergency" to no longer than 60 days and explicitly states, "The governor may not circumvent the sixty (60) day limitation by redeclaring successive states of disaster emergency for the same emergency in the absence of an extension by the legislature."
Unfortunately, the above provision is neutered by another provision of the bill, which lets the governor extend the state of disaster emergency "for the sole purpose of collection processes to receive federal funding, benefits, and resources available for the declared disaster emergency."
One of the most damaging elements of a state of emergency is that it opens the door to debt-financed federal dollars and to the strings those dollars inevitably carry. Accepting federal money compromises the sovereignty and security of the state and subjects Idahoans to the demands and orders of the federal government. Idaho should be seeking to increase its independence by decreasing its dependence on Washington, D.C. Allowing the governor to unilaterally declare and indefinitely extend a state of emergency or extreme peril — even if only for the purpose of increasing the state's dependence on debt-financed federal dollars — represents an unacceptable threat to the independence of Idahoans.
An additional concern is that this bill grants the Legislature authority to "extend the state of disaster emergency for any number of days." The exercise of this power is contingent on the Legislature being in a regular or extraordinary session when it takes that action.
The bill also says, "Any orders, rules, or proclamations issued by the governor under the authority of this section shall be considered administrative rules that may be rejected by concurrent resolution, in whole or in part, by the legislature. ..."
While shifting emergency power from the executive branch to the legislative branch may be a good thing, allowing a state of disaster emergency to be extended for any number of days still represents a concerning open-ended grant of expanded state power over the lives and property of individuals. Amending this line to say "for up to 60 additional days" or even for a longer but still defined period would be a significant improvement.
House Bill 98 amends Section 46-1008(7), Idaho Code, to clarify that protections related to the right to keep and bear arms, which apply during a state of disaster emergency, also apply to firearm and ammunition manufacturers. Additionally, this bill declares that a state of disaster emergency cannot be used as a pretext to "limit or suspend any rights guaranteed by the United States constitution or constitution of the state of Idaho, including but not limited to the right to peaceable assembly or free exercise of religion."
House Bill 98 further amends Section 46-1008, Idaho Code, with the addition of a subsection (8) to clarify that "During any state of disaster emergency, the governor may not alter, adjust, or suspend any provision of the Idaho Code."