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

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BOISE (Idaho Capital Sun) – A legal opinion from the Idaho attorney general’s office indicates that Lt. Gov. Janice McGeachin likely overstepped his legal authority by ordering a statewide ban on mask warrants. McGeachin’s order also likely encroached on the powers of the legislative branch, he says.

In his capacity as interim governor while Idaho Gov. Brad Little was out of state on Thursday, Lt. Gov. Janice McGeachin issued an executive order banning mask warrants by state and local government entities , including public schools and public health districts.

RELATED | Idaho Lieutenant Governor McGeachin issues order ending mask mandates for public agencies

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 ban mask warrants, potentially contrary to existing ordinances of local government entities, infringes on the express statutory authority of local government entities and is likely beyond the governor’s authority in law and law. constitution of Idaho, ”the legal opinion signed by Deputy Chief Attorney General Brian Kane said.

The Idaho legislature considered legislation in its 2021 session that would have banned mask warrants. The legislation has failed.

McGeachin’s order “has the effect of creating a law by executive order,” the notice reads. “It likely encroaches on the legislative power of the legislature and violates the separation of powers between the executive and the legislature.”

RELATED | Bill to ban mask warrants dies in Idaho Senate

McGeachin had some authority to act in place of the governor under the provisions of the Idaho Constitution and Title 67 of the Idaho Code.

But this authority, like that of the governor, allows decrees to ensure “that the laws [of Idaho] are faithfully executed, ”states the legal opinion.

Idaho’s 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 students”. Public health boards have the power to “pass all prescriptions and make all regulations necessary to preserve public health.” And cities have the power to enforce these public health regulations.

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

Little on Friday repealed its ordinance, calling it an “irresponsible and selfish political coup” that violated the rule of law.

RELATED | ‘Tyranny’: Idaho Gov. Brad Little repeals McGeachin’s ban on mask warrants

The attorney general’s office is the state’s main legal team. Idaho’s attorney general is not appointed by the governor but rather is a separately elected official.


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