Idaho legislators at odds with how to balance, restrict power in health crisis

By Ruth Brown, Idaho Reports

During a contentious legislative session the state’s seen multiple bills targeted at largely restricting the powers of public health districts, the governor, and the Department of Health and Welfare.

Before the legislature recessed because of a COVID outbreak, a lack of consensus on the best way to balance executive and legislative powers during a crisis halted those attempts. 

The flood of bills coming through the Statehouse leave questions around who should hold the power and how much  consensus should there be in crisis. 

Lawmakers have tried to prohibit face mask mandates, end the state’s disaster declaration, and prohibit health districts from drafting orders. A few bills have passed both chambers, but most are in legislative limbo, with the legislature’s COVID-prompted recess until April 6 adding more uncertainty to the bills’ fate. 

Assistant Majority Leader Rep. Jason Monks said he believes the Senate and House said he’s confident some of them will make it through before the Legislature adjourns for the year. 

“We’ve been working together pretty well,” Monks told Idaho Reports on Wednesday. “With these bills (on restrictions) in particular we’ve been trying to work as a team.”

The House has yet to take up SB1136, which would limit the amount of time a governor may maintain a declaration of extreme peril without concurrence by the legislature. 

On the other side of the rotunda, the Senate hasn’t yet voted on HB135, which would limit the length of a governor’s emergency disaster declaration. 

“I think we will stick around until the governor either signs or vetoes some of these,” Monks said. “We will definitely stick around until we know.”

Bills to restrict the governor

Idaho has had an emergency declaration in place for more than a year, allowing the state to receive federal assistance during the pandemic.

The declaration alone is not responsible for any closures or restrictions put in place by the governor or municipalities, but that didn’t stop lawmakers from trying to end it. Early in the session, the Senate proposed two bills to try to end the emergency declaration without affecting federal funds — an action that drew a rare rebuke from Gov. Brad Little, who said it would jeopardize vaccination roll-out and other mitigation efforts. 

Multiple bills have been drafted by lawmakers to limit the length of emergency disaster declarations to a maximum of 30 days unless extended by the legislature.

Some versions of the bill declared all jobs essential, while others prohibited the governor from shutting down businesses. 

As of March 25, none of the bills had passed both chambers.

HB 135 passed the House but has been sent to the Senate’s amending order for changes. That bill would limit emergency disaster declarations to a maximum of 60 days unless extended by the legislature.

When the Senate returns in April, the bill could be brought up again for a vote.

Monks sponsored HB135 and said until now, the sections of code involved had never been “stress-tested.”

“This is a good time to review this,” Monks said about the pandemic. “Being that we can’t call ourselves in, it would be a year. …We don’t have the luxury of giving this another six months.”

SB1136 passed the Senate, but was amended by the House and hasn’t yet been voted on. The bill would limit the amount of time the governor could maintain a declaration of extreme peril without legislative approval. The bill also declares all jobs essential and adds definitions and  language around “peril” and “martial law.”

Bills to restrict public health districts

During the pandemic, some of Idaho’s seven public health districts have implemented restrictions on crowd sizes, mask mandates, and advisories on ways to prevent the spread of coronavirus. 

Shortly before the Idaho Legislature shut down for two weeks due to a COVID-19 outbreak in the House, Rep. Karey Hanks, R-St. Anthony, pitched a bill that would prohibit any agency from mandating face masks be worn. 

“If people were dying in the streets, we would not need government mandates,” Hanks told the House State Affairs Committee last week.

The bill, HB281, would prohibit entities such as cities, counties, public health districts, and school districts from manding masks be worn for the purpose of preventing the spread of a contagious disease.

At no point in the pandemic has Little issued a statewide mask mandate, but Central District Health and Panhandle Health have in its areas, as well as a handful of cities and counties in Idaho.

The Centers for Disease Control and Prevention has repeatedly said that when properly worn, facial masks can help reduce the spread of coronavirus.

Now on its way to the governor’s desk for signature is SB1060, a bill that would require county commissions to approve of any public health order issued by a public health district. 

SB1060 had the support of the state’s seven public health districts. If signed by the governor, the county commission in the affected county would have to approve the health district’s order, which could stay in place for 30 days. After 30 days, the order must be extended or modified. 

Bills to restrict school districts

Early in the session, a bill to limit the number of agencies allowed to close a public school made it through both the House and Senate. 

HB67 states that only K-12 school districts may close a school. The Department of Health and Welfare, public health districts, and cities would not be allowed to order a school close. 

The bill was signed by the governor on March 3.

Rep. Codi Galloway, R-Boise, pitched a bill to incentivize schools to remain open for full-time, in-person learning at least four days a week. The bill came after many school districts chose to close, or partially close, schools during the COVID-19 pandemic. 

If a school is unable to provide that, the child’s parent or guardian could withdraw students from the school to seek an alternative education solution. The parent or guardian would be provided with a prorated reimbursement payment, money that otherwise would have gone to the school. 

The bill, HB293, passed the House with a 55-15 vote but failed to make it out of the Senate Education Committee.

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