By Lyndsie Kiebert
The Bonner County Board of Commissioners issued a proclamation May 28 opposing the Idaho Stage 2 “Stay Healthy” order from Gov. Brad Little, alleging that the directive is unconstitutional.
Commissioners Dan McDonald and Steve Bradshaw voted to approve the proclamation, while Commissioner Jeff Connolly opposed.
The proclamation, prepared by Bonner County Deputy Prosecutor Scott Bauer at McDonald’s request, points to the order’s ambiguity to argue that measures it outlines threaten to unconstitutionally devolve the governor’s power to smaller municipalities and institute contact tracing and vaccination measures that will infringe on Idahoans’ liberties. Furthermore, the proclamation argues that the state does not identify adequate evidence to justify its mandates — specifically that the state can’t lean on health care capacity arguments as a reason to allow the governor to transfer power to localities to “enact stringent orders in furtherance of overutilization prevention.”
In summary, the proclamation states that the order’s objectives, “are unconstitutional and replicate methods used in command-and-control societies such as China. Consequently, the BOCC will not be following the Directive set forth in this Order.”
Though the proclamation pertains only to Stage 2, McDonald told the Sandpoint Reader that he believes the board “will be revisiting the proclamation for Stage 3 and beyond sometime soon,” because “none of the conditions of concern have changed” as the state has transitioned into Stage 3.
The discussion leading up to the split vote on May 28 began with Connolly stating that he didn’t receive a draft of the proclamation until an hour before the meeting. He said he was struggling with understanding the purpose of the document, seeing as Stage 2 was scheduled to end two days later.
In his presentation to the commissioners regarding the proclamation, Bauer said part of the order’s unconstitutionality lies in a paragraph that states, “to decrease the spread of COVID-19, the cities, counties, and public health districts of the State of Idaho may enact more stringent public health orders than those set out in this Order.” The proclamation also takes issue with the order where it states, “it is essential to slow virus transmission as much as possible.”
Bauer said the language appears to be “laying the foundation for the local government[s] to start imposing any and every mandate under the authority of the governor’s order.”
“When the governor delegates and devolves all of his power to over a thousand local cities and 44 counties to impose any order to minimize infection as much as possible, to me that is an illegal delegation of power,” Bauer said, going on to say that the scope of the state’s testing recommendations is “massively intrusive.”
When Connolly again asked what the proclamation would “accomplish,” McDonald said: “It says Bonner County will not comply. We’re trying to push back on Little and get him to stop and think. We’re pointing out that what’s been done is unconstitutional. We swore an oath.”
At one point during the meeting, Bradshaw asked hypothetically, “At what point did we elect Brad Little to be God over the state of Idaho?”
“From where I sit, it’s a little soft,” Bradshaw said of the proclamation.
Connolly expressed concern that the proclamation relied too heavily on “assumptions,” and voted “nay” while the other two commissioners approved the document.
Bonner County isn’t the only entity pointing out possible constitutional infringements in the governor’s COVID-19 Stay Healthy orders. McDonald said he received some positive responses from other Idaho counties when he criticized Little’s reopening plan in May, and legislators like Rep. Heather Scott, R-Blanchard, have been vocal in calling the state’s pandemic response unconstitutional. As well, Boise-based free-market think tank Idaho Freedom Foundation, whose activities in the capital have drawn criticism for crossing the line into lobbying and spurred the wave of “Disobey Idaho” anti-stay-home order protests in April, has consistently alleged that the governor’s orders are infringing on people’s freedoms.
However, McDonald said that to his knowledge, the county did not look to any outside organizations for help constructing the proclamation’s argument.
“We really believed it was important to look at this de novo [“starting from the beginning”] so it was worked on primarily inside Bonner County,” McDonald told the Reader.
Though county officials said they created the proclamation in-house, Bauer told the commissioners that he ran the document by a handful of attorneys both in and outside of the county. When Connolly asked whether Bauer asked the Idaho attorney general to look over the county’s argument, Bauer said, “I searched through my normal private channels, and this is what I came up with.”
The Idaho attorney general’s office did not comment on questions from the Reader regarding the constitutionality of the governor’s order or the legal weight of the commissioners’ proclamation.
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