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Give Me Liberty! Protests of Stay-At-Home Orders


This article does not address the political aspects of the Idaho Governor's stay- at- home order. It looks at the legality of such orders in light of recent protests.

Idaho's Governor Brad Little issued a stay-at-home order. It was extended until April 30, 2020.

Recently, protesters marched to the Idaho Capitol claiming the order to stay home was issued in violation of their Constitutional rights to liberty (Idaho Const. Art. I, sect. 1) , to freely worship ( Art. I, sect. 4), and to assemble (Art. I, sect. 10). Since violations of the stay home order could result in criminal prosecution, the protesters wanted the order rescinded. They argued that Little lacked the legal authority to issue the order.

Little did have the legal authority to issue the order, however. The Idaho Constitution gives him that right. Little is the Commander of the Militia under Art. IV , sect. 4. In this capacity, he can enforce the laws. Also, he has the supreme executive power in Idaho under Art. IV, sect. 5. Thus, he can assure that the laws are faithfully executed.

So, which laws give Little the authority to issue Covid-19 stay-at-home orders? Idaho Code sect. 46-601 gives Little the authority to proclaim a "state of extreme emergency". After proclaiming such an emergency, Little has the authority to "issue and enforce rules, regulations and orders which he considers necessary for the protection of life and property." Idaho Code sect. 46-1008(1) grants Little the authority to, in the event of a disaster emergency, issue orders that "have the force and effect of law." Section 46-1008 also gives Little the authority to regulate the conduct of business and the ingress and egress and movement of people within a disaster area.

Little wields executive authority over the Idaho Department of Health and Welfare, the director of which has authority to "impose and enforce orders of isolation and quarantine." Idaho Code sect.56-1003(7). Health and Welfare's public health district boards also have the authority to issue quarantine orders within their health districts. See Idaho Code sect. 39-415.

For the above reasons,Little did have the authority to issue a stay-at-home order. He proclaimed an extreme health emergency due to the Covid-19 on March 25, 2020. The stay-at-home order was issued pursuant thereto.

Little's stay-at-home order may be enforced by city police, county sheriffs and the Idaho State Police. However, the enforcement of such orders must comply with a defendant's criminal rights. In one of the few cases addressing this issue the Custer County Sheriff was removed from office because he arrested and illegally confined persons pursuant to a quarantine issued as a result of the Spanish flu. While he legally arrested them for violating the quarantine, he refused to allow them to contact an attorney, or to be brought quickly before a judge. The sheriff even refused to honor a district judge's order to free the defendants. The sheriff alleged he was following the orders of the district health board. However, he trampled upon the rights of the defendants. He was removed as a result! See Archbold v. Huntington, 34 Idaho 558 (1921).

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