House Concurrent Resolution 1 – Termination of state of emergency

Parrish Miller 2020 Special Session Leave a Comment

Bill description: House Concurrent Resolution 1 would end the state of emergency that has been in effect in Idaho, in one form or another, since March 13, 2020. 

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Does it create, expand, or enlarge any agency, board, program, function, or activity of government? Conversely, does it eliminate or curtail the size or scope of government?

Under the state of emergency, the executive branch of state government saw an enormous increase in power as did the seven public health districts in the state. This represents an enormous increase in the scope of regulatory power exercised by these entities. By terminating this state of emergency, these expanded powers are likewise ended. 

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Does it transfer a function of the private sector to the government? Examples include government ownership or control of any providers of goods or services such as the Land Board’s purchase of a self-storage facility, mandatory emissions testing, or pre-kindergarten. Conversely, does it eliminate a function of government or return a function of government to the private sector?

Under the state of emergency, the state government was empowered to shut down businesses and churches, limit access to the businesses that remained open, mandate the wearing of masks, and engage in other forms of intrusive hyperregulation. Instead of businesses making health and safety decisions based on the needs and principles of the free market, these decisions were preempted by the state. By terminating this state of emergency, these business functions are returned to the private sector. 

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Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

Under the state of emergency, the executive branch and the state’s public health districts were granted significantly expanded regulatory authority over the functions of Idaho businesses and the behavior and even attire of employees, customers, and other individuals. By terminating this state of emergency, this expanded regulatory authority is also ended.

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Does it increase barriers to entry into the Market? Examples include occupational licensure, the minimum wage, and restrictions on home businesses. Conversely, does it remove barriers to entry into the market?

Under the state of emergency, businesses were shuttered, manufacturing was suspended, and other businesses had their capacity limited. Additionally, mandates were imposed on employees and customers that changed their behavior in the market. Unemployment has skyrocketed and businesses have closed (many permanently) due to the rules and mandates issued under the state of emergency. By terminating this state of emergency, these significant barriers to entry in the market will be removed.

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Under the state of emergency, public meeting laws have been suspended. By terminating this state of emergency, the public meeting laws will be restored, which increases transparency and accountability.

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Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

Under the state of emergency, some businesses and employees were designated as essential while others were designated as non-essential. This arbitrary classification handed down by executive fiat determined who had a right to operate their businesses and earn a living and who did not. As violations of the principle of equal protection under the law go, this is perhaps one of the most egregious examples in modern history. By terminating this state of emergency, the discriminatory designations of essential and non-essential would likewise be repealed. 

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Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes

Under the state of emergency, simply operating one’s business, taking one’s children to a park, or holding a yard sale have been criminalized. These actions are demonstrably victimless, yet the state has seen fit to dispatch armed enforcers and to file criminal charges against numerous Idahoans who harmed no one. By terminating this state of emergency, such egregious violations of personal liberty would cease. 

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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?

It is difficult to articulate fully all the ways in which the state of emergency violates both the spirit and the letter of both the U.S. Constitution and the Idaho Constitution. A few examples include the following: The First Amendment guarantee of freedom of religion that has been violated by various orders relating to the operation of churches and religious organizations. The First Amendment guarantee of the freedom to assemble peaceably that has been limited to groups of just 50 or even 10 people. The Fourth Amendment guarantee to be secure in our persons, houses, papers, and effects, all of which have been violated in numerous ways under the state of emergency. The Sixth Amendment guarantee to speedy and public trials, many of which have been delayed in the name of the emergency. 

While this list is a mere introduction to a handful of the many constitutional issues that have been raised by the state of emergency, they highlight the numerous violations caused by the state of emergency, which will ideally be ended when this state of emergency is terminated. 

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