Bill Description: Senate Bill 1136a renames and redefines extreme emergencies and limits the governor's power during such times.
Amendment Analysis: The Amendment to Senate Bill 1136 does not change the rating or substantively change the analysis.
Analyst Note: Senate Bill 1136 is one of several pieces of legislation introduced during the 2021 session to change how emergencies are handled and to shift power from the executive branch to the legislative branch during such times. Senate Bill 1136 replaces Senate Bills 1054 and 1003.
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?
Senate Bill 1136 amends Section 46-601, Idaho Code, to make numerous changes, starting with renaming "extreme emergencies" to "extreme peril" and making several definitional changes to clarify that a "state of extreme peril" is caused by human action, not natural disasters. This change reduces the number of the circumstances under which an "extreme emergency" (now defined as a state of extreme peril) can be declared.
Senate Bill 1136 further amends Section 46-601, Idaho Code, to limit the reasons for which the governor may promulgate, issue, and enforce rules and orders during a state of extreme peril. Existing code allows the governor to do so for any reason "he considers necessary for the protection of life and property."
Senate Bill 1136 limits the promulgation, issuance, and enforcement to "written rules and orders necessary to support the national guard or militia and that are essential to protect life or property from violent destruction."
The new language goes on to say, "Such rules and orders must be essential to protect life or property from the existence of conditions threatening the safety of persons or property within the state and must be narrowly tailored to effectively protect life or property without placing unnecessary restrictions on the ability for a person or persons, regardless of job type or classification, to work, provide for their families, or otherwise contribute to the economy of the state of Idaho."
Senate Bill 1136 further amends Section 46-601, Idaho Code, to limit the length of a "state of extreme peril" to no longer than 60 days and explicitly states, "The governor may not circumvent the sixty (60) day limitation by redeclaring successive states of extreme peril for the same conditions threatening the safety of persons or property within the state in the absence of an extension by the legislature."
Unfortunately, the above provision is significantly negated by new language that allows the governor to extend the state of extreme peril indefinitely "solely for the purpose of receiving federal funding, benefits, or resources as a result of a declared disaster emergency."
One of the most damaging elements of a state of emergency (or extreme peril) 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 seek 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 defect of this bill is its new language that grants the Legislature authority to extend the state of extreme peril beyond 60 days. The exercise of this power is contingent on the Legislature being in a regular session or in an extraordinary session called specifically to address the state of extreme peril.
While shifting emergency power from the executive branch to the legislative branch may be a net positive, allowing a state of extreme peril to be extended indefinitely still represents a concerning open-ended grant of expanded state power over the lives and property of individuals. Amending this provision to say the Legislature may extend the state of extreme peril "for up to 60 additional days" or even for a longer but still defined period would be a significant improvement.
Senate Bill 1136 further amends Section 46-601, Idaho Code, to clarify that protections related to the right to keep and bear arms, which apply during a state of extreme peril, also apply to firearm and ammunition manufacturers. Additionally, it declares that a state of extreme peril cannot be used as a pretext to "limit or suspend any rights guaranteed by the United States constitution or the constitution of the state of Idaho, including but not limited to the right to peaceable assembly and free exercise of religion."
It also states, "During any state of extreme peril, the governor may not alter, adjust, or suspend any provision of the Idaho Code but for good cause may temporarily suspend enforcement of particular provisions that prevent, hinder, or delay necessary action to respond to the state of extreme peril."