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House Concurrent Resolution 40 – Ending the Governor’s COVID-19 emergency order

House Concurrent Resolution 40 – Ending the Governor’s COVID-19 emergency order

Niklas Kleinworth
March 6, 2022

Bill Description: House Concurrent Resolution 40 formally ends the governor’s COVID-19 emergency order, first implemented on March 13, 2020.

Rating: +3

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

Under Section 46-1008 of Idaho Code, the governor’s executive order allows him to suspend agency rules, reorganize agency officials and their roles, and regulate the free movement of constituents. This manifested in stay-at-home orders and mandatory business closures at the height of the pandemic. Though these closures are no longer in effect, the governor retains the power to reimplement these restrictive measures until he ends his emergency declaration.

In ending the governor’s emergency declaration, HCR 40 would remove the executive branch’s unilateral authority to regulate ordinary activities in the free market.


Does it violate the spirit or the letter of the United States Constitution or the Idaho Constitution?

The governor’s emergency powers allow him to suspend administrative rules, reorganize staffing and resources in executive agencies, and regulate the activities of the free market without specific authorization by the Idaho Legislature. Though the intent of these powers is to allow for a swift and effective response from the state in the face of disaster, these powers were intended to last for a defined period of time. Specifically, the need for the governor’s emergency declaration was to be reviewed every 30 days and renewed when necessary. There was no intention for the governor to hold these emergency powers as he has. At the time of this writing, we are approaching the two-year anniversary of the governor’s original emergency declaration.

The state government in Idaho is structured to have a republican form, with checks and balances integrated in the three branches. When the executive branch holds emergency powers, especially for this long, it violates the spirit of the Idaho Constitution by circumventing the Legislature’s role to supervise the regulations imposed throughout the state.

HCR 40 would preserve the intent of the Idaho Constitution by restoring the proper powers inherent to each branch of government.


Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules?

Under the governor’s emergency order, he retains the right to work alongside the federal government for funding emergency response efforts throughout the state. Notably, the governor’s current emergency order activates federal funds, like $39 million from the Federal Emergency Management Agency (FEMA) to administer COVID-19 vaccine programs.

With federal dollars comes federal oversight and agenda-setting through the power of the purse. HCR 40 rescinds this federal oversight of state affairs by deactivating these emergency federal dollars.


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