The Elephant in the Room

The United States Constitution guarantees the states a republican form of government, something quite different from a monarchy or dictatorship.  This means we elect our representatives and give them the power to make decisions on our behalf.  The primary goal of our Republic is to protect our unalienable rights.  In order to limit government power and avoid tyranny, we separate powers into three distinct co-equal branches of government (legislative, executive, judicial).  The roles and duties of these three branches are defined and limited by our state constitution.  This assures that power is spread out and not consolidated in one area or person.  It is intended to provide a system of checks and balances that prevents one branch from dominating another and from becoming tyrannical relative to the citizenry.

Article 2, Section 1, of the Idaho Constitution is unambiguous:

DEPARTMENTS OF GOVERNMENT. The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

A governor in a Republic is different than a king in a monarchy or a dictatorship, where political power rests in the hands of an individual, often without limits.  Edicts are often enforced with intimidation and threats or use of violence. In our Republic, the governor is just one of the executive branch’s officers, and his/her authority and power is limited, defined, and shared with the other executive branch elected officials as defined in our constitution.  The governor’s limited role and duties are described in Article 4 of the state constitution.

Currently what we have in Idaho government does not resemble a Republic.  Why? Because over the last four months our governor has declared emergencies and extreme emergencies while the legislature has been out of session.  He has used these actions and times to circumvent the legislative branch, sideline the constitution, and violate the separation of powers intent.  Currently the governor is unconstitutionally appropriating tax dollars and suspending and re-writing Idaho laws with no accountability.  To be clear, these actions are not only unconstitutional, they are reckless and un-American. The U.S. Constitution and the Idaho Constitution cannot be suspended during times of so-called emergencies.

The following actions of the governor are cause for alarm and concern and call for intervention, oversight and possible legal action:

• Our governor declared several “state of emergencies” and has declared an “extreme emergency” using Idaho’s Martial Law code 46-601 for his actions (LINK).
• Our governor has used his staff to enforce unconstitutional stay-at-home orders in public settings and to intimidate businesses and churches to close their doors. He has treated citizens unequally by proclaiming that some businesses are essential, some are not, and that no churches are essential.   This violates Amendment 5 of the U.S. Constitution which states that, “No person shall … be deprived of life, liberty, or property, without due process of law … without just compensation.”
• Our governor has ignored separation of powers as defined in Article 2 Section 1 and has, with a stroke of his pen, re-written election and changed or suspended many other other laws and policies. (LINK)
• Our governor has initiated and intends to implement a mandatory statewide “test, trace and isolate” program and has stated publicly that “we will not be back to normal until we have a vaccination”. Contact tracing and quarantine requirements harass and restrict the movement of individuals or families based on personal prejudices such as religion, race, or political affiliation while never getting to the root any such health emergency.
• Our governor’s actions were taken at a time when the following facts existed: ZERO Idaho residents under the age of 50 had died or were assumed to have died of Covid-related issues,  33 of Idaho’s 44 counties (75%) had experienced ZERO Covid-related  deaths, and at NO time during the US peak of the novel coronavirus infections were ANY of Idaho’s healthcare systems near or at the point of being overrun past their capacity to treat patients.
• Our governor has made, to date, 20 executive orders and proclamations and 52 announcements and has removed many of the administrative rules including important rules designed to protect children taken from their families by Child Protective Services-CPS. (LINK)
• Our governor continues to set up committees of his cronies and selected bureaucrats to plan policy decisions for Idahoan while ignoring shouts for the legislature to return for an extraordinary session to provide oversight and a voice for constituents. His most recent appointments include a new public schools re-opening committee.  All this at the expense of the taxpayer.
• Our governor is continuing to make unilateral decisions and has made it clear to the legislature that he doesn’t want, need, or have time for the legislative body’s input in his decision making. He regards his 30 minute-per-week conference call with legislators as sufficient to meet constitutional and statutory requirements.  He brags of collaborating with other surrounding states’ governors and has told our county commissioners they should consider reaching out to other state’s commissioners to share information and get ideas.  (Hopefully he is not suggesting our Idaho city mayors reach out to Seattle city mayor for any bright ideas!)
• Shortly after the legislature adjourned from the 2020 session, the governor set our constitution aside, turned a deaf ear to the legislature and began to appoint his handpicked group of overseers (LINK) to assist him in the destruction of our private industry-based economy and the reconstruction of our new government handout driven economy through the distribution of Idaho’s $1.53 billion federal CARES Act dollars.  Our Governor is currently appropriating these federal tax dollars with the associated policies, which is not a power delegated to the executive branch.
• Our governor has funded the Covid-19 tracking/tracing/surveillance program using $7 million from the CARES Act.   (Here is a link to this task force’s 37-page plan to test trace and track citizens.)  
• Our governor has recently unilaterally approved an unsustainable plan of redistribution of wealth by paying unemployment recipients a “go-back-to-work bonus” of $1500 each with our tax dollars. (LINK)

Where is the Accountability for the CARES Act Spending?

To date, you cannot track the CARES money funneling through Idaho’s executive branch to the recipients.  These monies were deemed discretionary and Idaho law allows for some miscellaneous discretionary appropriation/spending by the executive branch while the legislature is out of session.  However, it was never intended to allow for the executive branch to appropriate funds of this magnitude or without legislative oversight.  Appropriation is the duty of the legislature, not the executive branch.  The governor has chosen to follow a very grey area of law to justify and continue his actions (Idaho Code 67-3516(2)). This part of code says that any new federal or private funds that are received while the legislature is not in session, MUST go through a process (commonly referred to as “non-cogging”) which allows the money to be distributed to agencies temporarily until the legislature returns.   This money can be authorized to be spent (“recognized”) when the legislature is out of session by bureaucrats and the Board of Examiners and spent by a state agency or institution receiving the funds.  An example of this may be a safety grant for a school with amounts generally minimal when compared to the overall budget.  This process was NEVER intended to allow the governor to appropriate monies to citizens and agencies, but rather to deal with logistical issues throughout months when the legislature is not in session.

What Can Be Done?

Many have expressed their concerns and outrage about our out-of-control executive branch, with the constant question of what can be done?  Citizens are worried that Governor Little will decide to declare another extreme emergency in the fall to continue his strangle hold on the state, leading to more chaos in the months leading up to the November elections.  He seemingly left the door open for that with his announcements that our future hinges on having a vaccine and reaching “herd immunity”, neither of which is anticipated for the foreseeable future.  Citizens are also concerned that the legislature’s role will be indefinitely replaced with more and more committees of unelected bureaucrats, taking away their local representation in decision making.  Citizens are now realizing that elections do have consequences.

Many individuals, citizen groups and organizations are demanding their legislators return to the Capitol on June 23 to discuss a path forward by having an emergency 2020 session. They are using:

1. Idaho Code 67-422 CONVENING OF LEGISLATURE IN EVENT OF ATTACK. In the event of an attack, the governor shall call the legislature into session as soon as practicable, and in any case within ninety (90) days following the inception of the attack. If the governor fails to issue such call, the legislature shall, on the ninetieth day from the date of inception of the attack, automatically convene at the place where the governor then has his office.” And;
2. The fact that Governor Little invoked Idaho Statute 46-1008 (martial law) which explicitly states that “the legislature…may terminate a state of disaster emergency at any time”, and by implication, allows them to meet “at any time”, with the clear intent of the law being a check and balance on a governor’s powers, and that Article 3, Section 8, of Idaho’s constitution stipulates that the legislature “shall” be in session “when convened by the governor”, but nowhere says that they can only be convened by the governor, nor does it forbid them from “meeting at any time” as Statute 46-1008 allows for.

Citizens can, and have been doing the following:

1. If you believe in the Republic form of government and want checks and balances in your government, I encourage you to contact your legislators and request they show up on June 23^rd at the Capital to represent your discontent with the governor’s actions. Encourage them to discuss with other legislators, ways to address the overreach of the governor’s constitutional authority by appropriating money and changing laws, both jobs of the legislature.  If you do not know who your legislators are, CLICK HERE.  Many legislators may be hesitant to show up on June 23^rd for fear of the governor’s reprisals towards their future law-making efforts or political aspirations.    It would be a travesty should they choose to cloister themselves rather than represent you, the citizen, in a critical time of need.  Remember the words of Thomas Jefferson: “When government fears the people, there is liberty. When the people fear the government, there is tyranny.”
2. Citizens are currently working on a recall effort for Governor Little. This is a legal process with guidelines set up in Idaho Code.  This is another way to bring attention to the lack of checks and balances, violations of law and serious concerns about any elected official’s actions.  The recall effort started in early June and signatures will be collected until early August.  Recalls are difficult but not impossible.  Time frames are short and numbers of signatures needed are high.  If petition gatherers are successful, the question of recall of our governor will appear on the November ballot.  If successful, the lieutenant governor will become acting governor for the remainder of the term.  Citizens can also use this same recall process on legislators who do not fulfill their oath of office.
3. Citizens can contact the governor’s office and ask him to stop violating the constitution and request he call the legislature back for an extraordinary session. (208) 334-2100   governor@gov.idaho.gov.

Legislators who have citizens as their top priority, and are willing to do their job to guarantee their citizens a Republic form of government can do the following:

1. Fulfill their oath of office by showing up on June 23rd to defend the constitution, represent the will of the people and publicly show their opposition to the governor’s statewide unconstitutional actions and overreach. This will be a true test if your legislator takes their oath seriously and whether they are in office for their own agenda or for their constituents.  Some of the current leadership members have been calling and pressuring legislators to stay home.  The media is assisting leadership by promoting a false narrative of “government overthrow” and an “illegal return” to the statehouse for those who legislators who show up.  This constitutes coordinated political bullying by arrogant politicians and their media mouthpieces.
2. The legislature can end the governor’s declaration of emergency by concurrent resolution. Idaho Code 46-1008 states, “The legislature by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the governor shall issue an executive order or proclamation ending the state of disaster emergency.”  (Without strong leadership, it is hard to organize 105 legislators to do anything!)
3. The legislature can return to session to act as the check and balance to regain control of the governor’s spending spree and address his actions. To date, there appears to be a coordinated effort by legislative leadership members, the governor, and the AG’s office to thwarts attempts of the legislature to re-convene.
4. As a final resort, the legislature can legally return to session to consider impeachment of the governor through Article 5 of the Idaho State Constitution due to violations of the constitution. There are virtually no restrictions for this action.  (In my opinion, this will never occur because many legislators routinely take their direction from the governor’s office and do not understand our constitution or the oath they have taken).  We shall see on Tuesday June 23^rd, where each legislator stands and how quickly they suddenly have “other commitments.”  Citizens need to hold them accountable.

Throughout these times of trouble, I have been updating citizens on our executive branch’s heavy-handed responses to an apparent health emergency, the resulting economic damage its decisions have inflicted on Idaho families, and now its self-appointed role as benevolent dictator to repair the damage to the economy they promoted.

I believe it is our duty as legislators to provide necessary oversight and more stability during this time of an executive branch spending free-for-all.  I believe the legislature needs to return to session immediately and fulfill its duties as a check and balance in the distribution of this money and to build a workable path forward to return Idaho to a sense of normalcy.  Remember, the job of your representatives and senators are to work for the people, not the governor nor his agencies nor themselves.

My district is geographically the farthest district away from the Capital but I will be there on the 23^rd to share ideas and concerns from my district and look for ways to address the governor’s emergency control powers.  I hope there will be many others legislators joining me.

In Liberty, 

Rep. Heather Scott

HScott@House.Idaho.gov

208-920-3120