McGeachin’s order was likely unconstitutional, Idaho Attorney General’s opinion says

The order “has the effect of creating a law through executive order,” the legal opinion says

By: - May 28, 2021 2:01 pm
Janice McGeachin

In this file photo, Idaho Lt. Gov. Janice McGeachin poses with the executive order she issued May 27 prohibiting mask mandates as acting governor while Gov. Brad Little was out of the state. (Clark Corbin/Idaho Capital Sun)

A legal opinion from the Idaho Attorney General’s Office says Lt. Gov. Janice McGeachin likely went beyond her legal authority by ordering a statewide ban on mask mandates. McGeachin’s order also likely encroached on the legislative branch’s powers, it says.

In her capacity as acting governor while Idaho Gov. Brad Little was out of state Thursday, Lt. Gov. Janice McGeachin issued an executive order prohibiting mask mandates by state and local government entities, including public schools and public health districts.

Idaho Sen. Melissa Wintrow, D-Boise, requested the analysis after McGeachin issued the order.

The Idaho Capital Sun obtained the report through a public records request.

“The acting governor’s action to prohibit mask mandates, potentially contrary to existing orders of local government entities, encroaches upon the express statutory authority of local government entities and likely exceeds the governor’s authority in statute and Idaho’s constitution,” the legal opinion signed by Chief Deputy Attorney General Brian Kane said.

Idaho AG legal opinion

The Idaho Legislature considered legislation in its 2021 session that would have banned mask mandates. The legislation failed.

McGeachin’s order “has the effect of creating a law through executive order,” the opinion says. “This likely encroaches on the lawmaking power of the Legislature and violates the separation of powers between the executive and legislative branch.”

McGeachin did have some authority to act in the governor’s stead under provisions of the Idaho Constitution and Title 67 of Idaho Code.

But that authority, just like the governor’s, allows for executive orders to ensure “that the laws [of Idaho] are faithfully executed,” the legal opinion says.

Idaho code also empowers local governments, school boards and public health boards to make their own decisions to protect the public.

School boards have a duty “to protect the morals and health of the pupils.” Public health boards have the power to “pass all ordinances and make all regulations necessary to preserve the public health.” And cities have enforcement power when it comes to those public health regulations.

McGeachin plans to run for Idaho Governor in the 2022 election, she announced recently.

Little on Friday repealed her order, calling it “an irresponsible, self-serving political stunt” that violated the rule of law.

The Attorney General’s Office is the chief legal team for the state. Idaho’s attorney general is not appointed by the governor but instead is a separately elected official.

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Audrey Dutton
Audrey Dutton

Audrey Dutton, senior investigative reporter, joined the Idaho Capital Sun after 10 years at the Idaho Statesman. Her favorite topics to cover include health care, business, consumer protection issues and white collar crime. Dutton hails from Twin Falls. She attended college at Hamline University in St. Paul, Minnesota, and received a master's degree in journalism from Columbia University in New York City. Before coming home to Idaho, Dutton worked as a journalist in Minnesota, New York, Maryland and Washington, D.C. Dutton's work has earned dozens of state, regional and national awards for investigative reporting, health care and business reporting, data visualization and more.