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Little’s stay-home order is unconstitutional

Little’s stay-home order is unconstitutional

Wayne Hoffman
March 28, 2020

As COVID-19 reached the U.S., it was easy to compliment Gov. Brad Little for his measured response. Unlike other governors who halted all economic activity within their borders, Little focused on eliminating the government regulations that were in the way of the diagnosis and treatment of coronavirus. 

But before a single death was logged in Idaho, Little bowed to the opinion of fear-mongering newspaper editorialists, the likes of Rachel Maddow, and the health “experts” who want to protect us to death. Little signed a confusing order this week that forces all Idahoans to stay at home. You can leave, but first you need to decipher about 22 pages of state and federal documents to conclude whether your job or activity is deemed essential or non-essential. Getting it wrong, venturing out of a home or apartment for reasons not deemed valid by the authorities, could result in criminal penalties under state law. 

This was a sad turn for a governor who made his inaugural year in office all about getting spending under control and cutting government red tape. His efforts have been hailed by many conservatives, who found his approach a refreshing and surprising change from the previous administration.

During a Thursday night televised Q&A, a viewer asked Little to square his stay-at-home order with our constitutionally-protected rights. The viewer wondered how Little can exercise government power in a way that prohibits assembly or religious freedom. 

Little answered, verbatim, “Very serious, but the emergency, whether it’s the federal government or the state government, the emergency health provisions of law has, you know, this is not a permanent, and we don’t want it to be permanent, but in these emergencies, and remember yesterday I declared an extreme emergency. That’s how that happens.” 

Sadly, moderator Melissa Davlin didn’t follow up. You’d think that this issue would warrant additional investigation and discussion. When asked about constitutionally-protected rights being utterly disregarded, the governor responded with one long, incoherent thought. What I think Little meant to say is, this is an emergency, and as such, the provisions of state law that allow the government to quarantine people supersede all.

To be clear, and this is indisputable, both our federal and state constitutions are written to protect our natural rights. Also indisputable: There’s nothing in our constitutions that makes our rights invalid or ignorable in the event of an emergency. Yet, when the government forces people to stay at home we are being denied our right to earn a living, provide for and protect our families, assemble, and move about freely, in Idaho and throughout much of the country. 

What other rights must we abandon in the interest of safety? California is using the crisis to justify the closure of gun shops. In New Jersey, officials are considering restrictions on free speech. The federal government is seeking the ability to detain people indefinitely without trial. Some politicians, even in Idaho, are contemplating a complete abrogation of existing contracts between landlords and tenants, banks and borrowers.

Grown adults should be allowed to make good decisions on their own. A landlord and a tenant should be allowed a conversation about how much rent should be paid during these difficult times. A business should be permitted the ability to find a way to stay open and still protect the health of employees and clientele. A church and its congregation should be able to make decisions about whether they all can continue to meet and worship.  Not all answers come from the government.

Certainly, Little finds himself in the most challenging position imaginable. This is unchartered territory, and he’s going to be criticized for doing too much and not enough. Some of what Little has done has been excellent, and for that he deserves applause. For example, Little on Friday announced further across-the-board state spending reductions, which is a really thoughtful and responsible way to deal with a predictable decline in state revenue. 

But that’s overshadowed by the stay-home order that threatens to destroy the state’s economy and forever alter our sense of a free society. Little swore an oath to uphold the U.S. and state constitutions. No one ever said that would be easy; he has to do it. As do all elected officials. It is possible to defend liberty and beat COVID-19 at the same time.

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