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Idaho’s Lt. Gov. COVID Rules Change Raises Legality Concerns

Lt. Gov. Janice McGeachin signed an executive order that bans vaccine passports and mandatory COVID testing in schools while Gov. Little was visiting the southern border. Was that within her constitutional power?

(TNS) — The days when then-Lt. Gov. Brad Little bragged about getting Gov. C.L. "Butch" Otter's parking spot when he was away are long gone. Little's own second-in-command is not so satisfied with small powers.

Idaho Lt. Gov. Janice McGeachin is again testing the limits of her position.

McGeachin signed an executive order banning vaccine passports and mandatory COVID-19 testing in schools on Tuesday, less than 24 hours after Little left the state to visit the Texas-Mexico border with nine other Republican governors. Little has said he will reverse it.

It's not the first time McGeachin has signed an executive order while Little was away. She made a similar attempt in March by banning mask mandates during Little's Colorado trip to the Republican Governors Association conference. Many questioned whether it was legal at the time.

The Idaho Constitution offers few clear answers when it comes to the legal powers of the lieutenant governor when the governor is out of the state.

What Does the Idaho Constitution Say?

"In case of the failure to qualify, the impeachment, or conviction of treason, felony, or other infamous crime of the governor, or his death, removal from office, resignation, absence from the state, or inability to discharge the powers and duties of his office, the powers, duties and emoluments of the office for the residue of the term, or until the disability shall cease, shall devolve upon the lieutenant governor," Chapter IV, Section 12 of the Idaho Constitution states.

It's a broad statement that leaves room for unknowns. It does, however, clearly give the powers of the governor to the lieutenant governor when he is out of state.

Can The Governor Give His Power to Someone Else?

According to the Idaho Constitution, the governor's powers can only go to the lieutenant governor, confirmed Jim Jones, former chief justice of the Idaho Supreme Court and co-founder of the Committee to Protect and Preserve the Idaho Constitution.

If something happens to both of them, then the powers of governor go to the president pro tempore. Right now, that's Sen. Chuck Winder, R-Boise.

Can The Lieutenant Governor Issue Executive Orders When The Governor Is Away?

Yes. The lieutenant governor obtains all powers of the governor in his absence — including executive orders. However, Jones believes the Idaho Supreme Court could rule in the future that there must be a more serious reason than being out of the state for the governor to be considered to be under a "disability" to govern. We're no longer in the days of "the telegraph and the pony express," Jones noted. Today, Little can easily make his wishes known through a phone call.

Can The Lieutenant Governor Issue An Executive Order About Anything?

No. Whether made by the governor or lieutenant governor, it has to be a legal executive order.

Probably not. Following McGeachin's March attempt, Rep. Melissa Wintrow, D-Boise, requested that the Idaho Attorney General's Office clarify the legality of McGeachin's actions. Deputy Attorney General Brian Kane wrote a detailed letter in response.

Under state law, school district trustees, cities, counties and public health districts have the power to determine policies to protect public health. State law also prohibits executive orders from changing state law.

Kane wrote that her March order was not legal. He said "the statute makes clear that an executive order can only be issued to ensure 'that the laws are faithfully executed.'" He also pointed out that it encroached "upon the express statutory authority of local government entities," including school districts.

Because McGeachin's order in March was not to ensure a current law was being executed, it was not legal. The same logic likely applies to Tuesday's executive order attempt.

Could the Idaho Supreme Court Rule On This In the Future?

Yes. The Idaho Supreme Court could be asked to make a ruling on the lieutenant governor's powers when a governor is out of the state. Jones said the Committee to Protect and Preserve the Idaho Constitution has considered taking this issue to the courts and may do so in the future. The watchdog group includes two former Idaho attorneys general and a former deputy attorney general among its legal experts.

"We would file suit against the lieutenant governor if she tried to do something really stupid during the governor's absence from the state," Jones said. "So it wouldn't be something that would just be swept under the rug. I think my group and some others that would say: 'Now hold on a minute, Lt. Gov. McGeachin. You can't do what you want to do, and if you try it we will seek to get it overturned on appeal for your lack of actual authority.'"

What Happens Next?

Last time, Little flew back to Idaho a day later. Upon his return, he swiftly repealed the executive order, calling it a "self-serving political stunt" that amounted to "tyranny." Until the courts get involved, another repeal will be the easiest way for Little to overrule McGeachin's action.

"I will be rescinding and reversing any actions taken by the Lt. Governor when I return," Little said in a statement on Twitter last Tuesday.

(c)2021 The Idaho Statesman (Boise, Idaho) Distributed by Tribune Content Agency, LLC.

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