With the coronavirus spreading rapidly in Idaho, Gov. Brad Little last Wednesday issued a proclamation directing most Idahoans to stay home for 21 days and all businesses, except those involving essential services, to close for the same period. Little could extend the period still further, depending on the outcome over the next few weeks.
The Founding Fathers recognized that drastic emergencies can require unusual government action. Thomas Jefferson made that point in connection with the Louisiana Purchase: “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.”
Even so, did Gov. Little have the legal right to order Idahoans to hunker down for three weeks? In my estimation he clearly did under both state and federal law.
Little’s proclamation cites as its statutory basis Idaho Code § 46-601 which states in the relevant part:
During a period of a state of extreme emergency, the governor shall have complete authority . . . to exercise within the area or regions wherein the state of extreme emergency exists all police power vested in the state by the constitution and the laws of the state of Idaho. In the exercise thereof he is authorized to promulgate, issue and enforce rules, regulations and orders which he considers necessary for the protection of life and property.
In the event of an emergency declaration Idaho Code § 46-1008 gives the governor the ability to “[u]tilize all resources of the state”, “commandeer or utilize any private property” and “control . . the movement of persons”. The powers are very broad and mirror the scope of the proclamation.
The Idaho Constitution grants the Idaho Legislature the power to pass such laws making these statutes valid under that document. There is no overreach here under Idaho law.
But, does such a far-reaching action violate the U.S. Constitution, particularly when it limits individual freedom of movement and the ability of businesses to function? The answer is no.
The 10th Amendment to the federal constitution specifically reserves powers to the states not given exclusively to the federal government. One of those is the “police power” which is the broad ability of states to protect the public’s health and safety. That power’s immense reach was recognized by the U.S. Supreme Court as early as 1798 in the case of Calder v. Bull, 3 U.S. 396 (1798). Gov. Little’s proclamation is unarguably an exercise of the police power in that he is attempting to protect the the public health of our citizenry.
The U.S. Supreme Court has recognized for over 100 years that the use of police power by a state in a valid emergency can legitimately intrude on individual liberties. The relevant case is Jacobson v. Massachusetts, 197 U.S. 11 (1905). The state of Massachusetts in 1902 had passed a statute that allowed local boards of health to require local adults to be vaccinated in certain circumstances. The city of Cambridge, prompted by a smallpox outbreak, required all local adults to receive the smallpox vaccination. Pastor Henning Jacobson refused the shot, stating his belief that such might be harmful to his person. He objected to the directive as “an invasion of his liberty” under the 14th Amendment.
A 7-2 Supreme Court disagreed with Jacobson’s assertions. Justice Harlan wrote the majority decision upholding the Massachusetts law:
The authority of the State to enact this statute is to be referred to what is commonly called the police power -- a power which the State did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and "health laws of every description;" indeed, all laws that relate to matters completely within its territory and which do not, by their necessary operation, affect the people of other States. According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. (citations omitted).
The court found a smallpox epidemic the sort of threat to public safety that allowed a state to restrict personal liberty, including rights constitutional in nature. In this case, Jacobson’s personal rights were subordinate to the threat to the public from the contagious disease.
Given this still-valid analysis, Little’s proclamation, if challenged in court under the U.S. Constitution, would likely be upheld as a valid exercise of the police power. This would be true despite the substantial and real impacts on individuals and businesses here in Idaho.
The bottom line is that the governor will ultimately be held accountable by the Idaho public, not the courts. If Idahoans deem his order justified under the circumstances (and I think he made the right call), he will benefit politically for his bold action. If the public feels otherwise it will be a factor when, and if, he seeks reelection in 2022.