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AG stands ready to defend stay-home order as Idaho officials question constitutionality

North Idaho Rep. Heather Scott, R-Blanchard, issued a newsletter and accompanying video on April 2, 2020, urging Idahoans to “push back” on Gov. Brad Little’s “unconstitutional edict” ordering Idahoans to stay home in an effort to prevent coronavirus spread.
BOISE (Idaho Statesman) — In the U.S., 38 states, including Idaho, are under a mandated stay-at-home order.
Each state’s governor issued the order to prevent the spread of coronavirus. In Idaho, cases are passing 1,000 and at least 10 Idahoans have died from COVID-19, the disease caused by the virus.
But two Republican Idaho elected officials and libertarian think-tank Idaho Freedom Foundation have publicly claimed that Idaho Gov. Brad Little overstepped his legal authority in issuing the order on March 25.
Idaho Attorney General Lawrence Wasden’s opinion on the matter? They’re wrong.
“The law in this area is clearly defined. I have no problems with providing a legal defense of the governor’s order and stand ready to do so should the need arise,” said Wasden, a Republican.
Idaho announced its first confirmed COVID-19 case on March 13. That same day, Little issued an emergency declaration to activate the state’s emergency operations plan.
Upon confirmation of the state’s first community-spread case, on March 25, Little announced an extreme emergency declaration and issued a 21-day stay-home order for everyone except for “essential businesses.”
At the time Little issued the order, fewer than 20 states had issued a comparable statewide order.
Enacting the order was the “right thing to do … from a scientific basis, from a health care basis and from a legal basis,” Little said during an Idaho Public Television interview Thursday.
The governor, who has long stood firm against heavy government regulation and boasts about Idaho being one of the least-regulated states in the nation, said it was a “heavy decision” to issue the order.
“But the safety of the people of Idaho is paramount,” Little continued. “And I have that constitutional authority. I have it by code, but I am not using it at all lightly. And it’s a heavy responsibility to me.”
Wasden said Little’s “stay-at-home order is well within the constitutional and statutory boundaries for such an order.” The governor’s authority “is codified throughout Idaho law,” according to the AG’s office.
Under the Idaho Constitution, the governor is the “commander of the militia,” which grants the authority to issue such an order. Additionally, the Department of Health and Welfare and local public health districts have authority to issue quarantine and isolation orders. The current order is issued jointly by the governor and the department.
Violation of the order is a misdemeanor, but Little has said he is not focusing on enforcement.
“Peer pressure from the communities is always our first preference,” Little said during a March 25 news conference announcing the order.
“We absolutely have to have this (order) take place, but our goal is not to arrest people,” Little said. “Our goal is to keep Idaho safe by maintaining this order.”
At least two North Idaho elected officials have claimed Little does not have such authority.
Earlier this week, Republican Rep. Heather Scott, who lives in Bonner County, sent out a newsletter via her legislative account using an official “State of Idaho Idaho Legislative Update” template, titled “The Virus that Tried to Kill the Constitution — COVID, The Constitution and Cause for Concern.”
The newsletter includes a link to a video of Scott urging people to “push back” on Little’s order, saying he does not have such authority under the U.S. Constitution.
“The lying Trump-hating media, who continues to push global and socialist agendas, has told us there is an emergency and it is a pandemic,” Scott says in the video.
“Across the country we have governors who are shutting down economies, they’re shutting down businesses, they’re shutting down our elections. And right before our very eyes, society is just stopping,” Scott continued.
“Our governor, the Idaho governor, has bought into his frenzy and has issued in an edict, or an order, stating that all Idahoans need to stay in their homes for 21 days, and only essential businesses can be operating,” she said.
In her newsletter, Scott stated the path chosen by the governor is “unconstitutional, un-American, and not the Idaho way.”
She said that while there is a real illness affecting the world, it is up to each American to be responsible for their actions and behavior — but Idahoans “cannot allow the crumbling of laws and Constitutions to go unchecked.”
“This will not end if we do not push back, and I am urging you to stand firm on your constitutional rights and exercise them often,” she stated.
On Thursday, Bonner County Sheriff Daryl Wheeler publicly released a letter he sent to Little urging him to call an emergency session of the full Idaho Legislature.
“I do not believe suspending the Constitution was wise because COVID-19 is nothing like the plague,” Wheeler wrote, referring to Little’s stay-at-home order.
For clarity, according to the Mayo Clinic, the plague is a disease that’s treatable with powerful antibiotics, while there is no vaccine or medication yet developed to treat COVID-19, the disease caused by the coronavirus.
“We were misled by some public health officials,” Wheeler wrote, referring to the World Health Organization, “and now it is time to reinstate our Constitution.”
The Statesman has reached out to Little for comment on Scott’s and Wheeler’s actions.
Scott and Wheeler are known to each other, along with Washington state Rep. Matt Shea. Shea, whose eastern Washington district in Spokane County abuts Idaho, was the subject of a 100-page investigative report prepared for the Washington House of Representatives
The report found that “Shea participated in an act of domestic terrorism against the United States.” Scott is referenced several times in the report.
Several years ago, Scott, Shea and Wheeler facilitated an armed standoff in North Idaho, including posting a video of their call for action. Due to health issues and safety concerns, the Veterans Administration decided to remove firearms from an elderly veteran in Priest River in August 2015. Shea, Scott, Wheeler and Patriot Movement followers traveled to Priest River to prevent the VA from removing the firearms.
The armed standoff ended peacefully, with the VA backing down.

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