Bill Description: Senate Bill 1217 would limit the governor's power during a declaration of extreme emergency.
Analyst Note: Senate Bill 1217 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 1217 is a watered down replacement for Senate Bill 1136, which was vetoed by the governor.
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 1217 repeals and replaces Section 46-601, Idaho Code, to make numerous changes, starting with the definition of an "extreme emergency." The bill removes "air pollution" and "breach of the peace" from the list of potential causes; amends "insurrection" to "violent insurrection"; and adds "pandemic," "volcano," "revolt," "explosion," and "cyber attack on critical infrastructure" to the list. It also adds a catch-all "or other conditions" to the end of the list. Finally, it adds "likely ... to result in mass casualties" to the list of reasons why an extreme emergency can be declared.
Taken together, the changes in this subsection could provide greater latitude to the governor to declare a state of extreme emergency for situations that might not merit such a declaration under existing law.
Senate Bill 1217 further amends Section 46-601, Idaho Code, to say that rules and orders issued by the governor during an extreme emergency "must be narrowly focused 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 1217 further amends Section 46-601, Idaho Code, to add some new limitations in cases where the governor declares a state of extreme emergency encompassing 12 or more counties. Specifically, it says in such cases, "the powers granted by the legislature to the governor in paragraph (a) of this subsection shall be revoked on the ninetieth day of the proclaimed state of extreme emergency unless the legislature is in regular session or the governor issues a proclamation convening an extraordinary session of the legislature for the purpose of having the legislature vote on whether to revoke any or all powers granted to the governor in paragraph (a) of this subsection. If the governor elects to issue a proclamation convening an extraordinary session, such proclamation must identify a date for the legislature to convene that is no later than twenty-one (21) days after the issuance of the proclamation. The governor, consistent with section 9, article IV of the constitution of the state of Idaho, may identify additional subjects for legislation during the extraordinary session, including the appropriation of necessary emergency funds."
Additionally, it says, "The governor may not circumvent the ninety (90) day limitation by redeclaring successive states of extreme emergency for the same conditions that gave rise to the proclaimed state of extreme emergency."
(Senate Bill 1136 would have limited such declarations to 60 days and would have applied this limitation regardless of how many counties were included in the declaration.)
Additionally, it is worth noting that approximately 77% of Idahoans live in 11 of the state's 44 counties, which means that more than three-fourths of Idahoans could be kept in a state of extreme emergency indefinitely under the parameters set by this bill.
Senate Bill 1217 further amends Section 46-601, Idaho Code, to modify the language protecting the right to keep and bear arms during a proclaimed state of extreme emergency. There are some positive changes here such as clarifying that these protections also apply to firearm and ammunition manufacturers, but there is another change that may warrant some concern.
The existing language prohibits the state from imposing "additional restrictions" on the right to keep and bear arms during a state of extreme emergency, while the new language prohibits the state from imposing or enforcing "federal restrictions prohibited under Idaho law" under such circumstances. This change removes the explicit prohibition on any "additional restrictions" regardless of their source.
The bill also adds new language saying the state may not "otherwise suspend or unconstitutionally limit 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."
This is an important and necessary protection for Idahoans.
Senate Bill 1217 further amends Section 46-601, Idaho Code, to say, "During any state of extreme emergency, 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 emergency."
This prohibition is effectively negated by the exception.