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Governor rescinds McGeachin’s executive order, calls it ‘irresponsible abuse of power’

FILE - In this Oct. 1, 2020, file photo, Idaho Gov. Brad Little gestures during a press conference at the Statehouse in Boise, Idaho. Gov. Little has issued an executive order repealing a mask-mandate prohibition put in place while he was out of the state by the lieutenant governor, describing her actions as a tyrannical abuse of power and an "irresponsible, self-serving political stunt." The Republican governor on Friday, May 28, 2021, rescinded Republican Lt. Gov. Janice McGeachin's executive action taken Thursday.  (Darin Oswald)
By Betsy Z. Russell Idaho Press

BOISE – Gov. Brad Little has reversed Lt. Gov. Janice McGeachin’s executive order banning mask requirements by Idaho local governments, state agencies or schools, calling it “an irresponsible, self-serving political stunt” and an “abuse of power.”

Little had never issued a statewide mask mandate during the COVID-19 outbreak, instead leaving that matter to local authorities – many of whom, including school boards, are empowered under state law to decide health and safety issues in their jurisdictions.

And state lawmakers this year passed four bills, all of which Little signed into law, to trim the governor’s emergency powers. One of those, HB 392, specifically forbids the governor from changing any state laws during disaster emergencies. “During any state of disaster emergency, the governor may not alter, adjust or create any provision of the Idaho Code,” the bill states; it contained an emergency clause, making it effective as soon as Little signed it into law on May 10.

Idaho school boards are empowered both by state law and by the Idaho Constitution to govern school districts, including a specific provision in Idaho Code 33-512 that says they’re empowered “to protect the morals and health of the pupils” and that puts them in charge of students who have or are exposed to “a contagious or infectious disease.” Other local governments in Idaho also have authority under specific state laws.

McGeachin’s executive order, issued when she was briefly acting governor on Thursday while Little was out of state speaking at a Republican Governors Association conference in Nashville, Tennessee, said she was forbidding all mask mandates “notwithstanding any local ordinance or emergency order to the contrary.”

That’s precisely the kind of unilateral action lawmakers this year railed against, as did McGeachin herself.

In a campaign fundraising post Thursday on her campaign website – McGeachin is running against Little, challenging him for governor in the 2022 GOP primary – she wrote, “I just ended Idaho’s mask mandates; the status quo has got to go!”

In an op-ed piece distributed to Idaho newspapers in May of 2020, McGeachin decried “government’s heavy hand” in the response to the coronavirus pandemic, writing, “The effects of the executive branch’s unilateral decisions will impact us for years.”

Little’s new executive order rescinds McGeachin’s, and puts state laws and regulations right back to what they were before McGeachin’s order was issued Thursday morning. It’s headed, “Repealing EO 2021-07 to Restore Local Control,” and specifies that it’s retroactive to 11 a.m. on Thursday, the same time McGeachin’s order was issued.

In a statement, Little said, “The executive order unilaterally and unlawfully takes away authorities given to the state’s mayors, local school board trustees, and others. Just like the states begrudge federal government mandates, local governments in Idaho resent the state doing the same thing.”

“The action that took place while I was traveling this week is not gubernatorial. The action that took place was an irresponsible, self-serving political stunt,” he said.

The governor added, “This kind of over-the-top executive action amounts to tyranny – something we all oppose. How ironic that the action comes from a person who has groused about tyranny, executive overreach, and balance of power for months.”

He didn’t mention HB 392, the new emergency powers law, in his statement or his new executive order. But he did say McGeachin’s order “presents some pretty alarming consequences.”

“For example, we would not be able to require safety measures for social workers visiting homes of at-risk individuals, or workers in our state testing lab, or employees at congregate facilities that are particularly vulnerable to outbreaks of infectious disease, threatening loss of life and added strain on the health care system we all depend on,” the governor said.

McGeachin could not immediately be reached for comment, but on Friday afternoon, she tweeted out a brief statement, saying in part, “Gov. Little chose to revoke your personal freedom by rescinding my order,” and saying, “I remain undeterred and unwavering in my commitment to defend your rights.”

Also Friday afternoon, the Idaho Attorney General’s office issued a legal opinion, requested by Sen. Melissa Wintrow, D-Boise, finding that the lieutenant governor’s executive order was both illegal and unconstitutional, violating state laws, the Idaho Constitution, and the separation of powers. The order, the opinion found, “has the effect of creating a law through executive order.”

Little’s office said the governor gave McGeachin a heads-up through a “courtesy call” before making his announcement Friday morning. McGeachin didn’t inform Little before she issued the executive order in his absence on Thursday.

McGeachin told the Idaho Press on Thursday, “I have never been an advocate for the mandate and I know that the governor hasn’t either. It’s always been a matter of personal responsibility. For those who feel at risk, then they should continue to wear (masks). But to force it on others I think is not right.”

Her order applied to all state or local government entities in Idaho, including public schools and colleges and health districts. “Some of the localities have taken advantage of the position that they have and forced this on some of the citizens,” McGeachin said Thursday.

Little’s statement Friday said McGeachin’s executive order “conflicts with other laws on the books. This is why you do your homework, Lt. Governor. … I do not like petty politics. I do not like political stunts over the rule of law. However, the significant consequences of the lieutenant governor’s flimsy executive order require me to clean up a mess.”

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.