In North Idaho, County Commissioners Declare Stay-At-Home Order 'Unconstitutional'

May 31, 2020

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A number of county commissioners have been challenging the constitutionality of statewide stay-at-home orders in recent weeks. The latest opposition comes from North Idaho. 

The Bonner County Board of County Commissioners on Thursday adopted a proclamation calling Idaho's second phase of stay-at-home orders "unconstitutional."


It argues the Stage 2 Stay Healthy Order, which expired Saturday, allows local governments to illegally impose forced quarantines, testing and vaccination. It also contends that since the predicted surge of COVID-19 cases was mostly avoided and hospitals weren't overrun, the order needs to be fully lifted. 

"The order is unconstitutionally burdening Idahoans' liberties in an endless pursuit of eliminating every case of COVID-19 in Idaho," the proclamation said. 

Though it passed the three person board, it was opposed by Bonner County Commissioner Jeff Connolly, a Republican.

"You can't stand up here and say, 'This is unconstitutional.' That's for a court to decide," he said during Thursday's meeting.

The proclamation comes after similar challenges were made by other commissioners and sheriffs in Washington, Idaho and Colorado. However, it probably doesn't have teeth. 

"If someone in one of these counties is in an altercation or is approached by law enforcement for not following the governor's order, I don't think they can show this proclamation as a defense," said Shaakirrah Sanders, a professor of law at the University of Idaho College of Law in Boise. 

The state's constitution doesn't empower commissioners to decide what's constitutional or not – that's a matter for the courts, according to Sanders.

"I don't believe these county commissioners – or any county commissioners in the state of Idaho – have the authority to declare this proclamation unconstitutional," he said.

Stephen R. Miller, a fellow professor of law at the University of Idaho College of Law, agrees, adding that it would be tough to challenge the governor's order in the courts, too. 

"The courts defer to the state or local government when acting to protect public health," Miller said. "Given the presumption favoring government action to protect public health, the incorporated CDC guidance, and the broad scope of powers to do so, I think it is unlikely that the proclamation states an actionable legal claim, though it is clearly a statement of political sentiment." 

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.

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