So Let’s Call It the No Legal Footing Lock Down

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At the beginning of this month, I wrote about the scriptural understanding of quarantine. Take those principles as the base line. What we are currently doing does not line up with that description at all. As in, not even close.

Better to be safe than sorry.

And at least to me, it is interesting to note that the Idaho Code, as it is written, is much more in line with the biblical approach to quarantine than what we are currently doing. And what we are currently doing, in case you missed it, is yelling up the wrong rain spout entirely.

What I would like to do is take a brief look at the lock down orders that Governor Little of Idaho issued, and note his stated basis for those lock down orders. This will occur in the next section, which will have a number of legal quotations with all the starch, but then we will get to the next section, which should be spicy enough for you. However informative it might be, if things get a bit dull in the middle part, there will be a modest attempt to make it up to you at the end.

History and Definitions

When Governor Little issued Executive Order No. 2020-6, which authorized the transfer of funds to the disaster emergency account, he began with this rationale:

WHEREAS, I issued a proclamation on March 13, 2020, declaring a state of emergency in the State of Idaho pursuant to Chapter 10, Title 46, Idaho Code, due to the occurrence and imminent threat to public health and safety arising from the effects of the 2019 novel coronavirus (COVID-19); and

WHEREAS, I issued a proclamation on March 25, 2020, declaring a state of extreme emergency in the State of Idaho pursuant to Chapter 6, Title 46, Idaho Code, due to the increasing occurrence and threat to public health and safety arising from the effects of COVID-19;

Got that? His legal basis for what he did was the Idaho Code, Chapters 6 and 10. The phrase to note is “pursuant to.” He did what he did according to the authorizations to be found there. So here is Chapter 6.

46-601. Authority of governor. (1) The governor shall have the power in the event of a state of extreme emergency to order into the active service of the state, the national guard, or any part thereof, and the organized militia, or any part thereof, or both as he may deem proper. “State of extreme emergency” means: (a) the duly proclaimed existence of conditions of extreme peril to the safety of persons and property within the state, or any part thereof, caused by an enemy attack or threatened attack; or (b) the duly proclaimed existence of conditions of extreme peril to the safety of persons and property within the state, or any part thereof, caused by such conditions as air pollution, fire, flood, storm, epidemic, riot or earthquake, insurrection, breach of the peace, which conditions by reason of their magnitude are or are likely to be beyond the control of the services, personnel, equipment and facilities of any county, any city, or any city and county.

Given what actually transpired, this description doesn’t seem to match. But what matters, I guess, is that everybody was calling it an extreme emergency. Then comes Chapter 10.

46-1008. The governor and disaster emergencies. (1) Under this act, the governor may issue executive orders, proclamations and amend or rescind them. Executive orders and proclamations have the force and effect of law.

So on this basis, the governor ordered the Director of the Department Health and Welfare to issue an order to have all non-essential Idahoans self-isolate. Now quite apart from the self-esteem problems this causes for all of us non-essentials, who were frankly starting to feel pretty non-essential even prior to all this, the problems start to come into focus.

Now at first blush, it looks as though the Director does have the power to order a quarantine under such emergency conditions.

56-1003 (7) The director, under rules adopted by the board of health and welfare, shall have the power to impose and enforce orders of isolation and quarantine to protect the public from the spread of infectious or communicable diseases or from contamination from chemical or biological agents, whether naturally occurring or propagated by criminal or terrorist act.

Plain as day, it says that he has the power to “impose and enforce orders of isolation and quarantine.” But ah, mon frère, a bit earlier in the code it defines these terms (as pesky legal scholars are wont to do), and this is what we find.

This is what isolation means.

56-1001 (4) “Isolation” means the separation of infected persons, or of persons suspected to be infected, from other persons to such places, under such conditions, and for such time as will prevent transmission of the infectious agent.

And we also find out what quarantine means.

56-1001 (8) “Quarantine” means the restriction placed on the entrance to and exit from the place or premises where an infectious agent or hazardous material exists.

So this lock down we are dealing with has no legal basis — unless the governor is maintaining that all Idahoans are infected, or that the entirety of Idaho is pestiferous. Let me say it again. There is no legal basis in the Idaho Code for “quarantining” a healthy population. There is no legal basis for saying that a state as big as Idaho (which, if you ironed flat, would be bigger than Texas) can be understood as the “premises” that you could cordon off with yellow tape. What the Idaho Code authorizes was clearly NOT THIS.

You isolate the sick, or those likely to be sick. That is the legal definition of isolation, and you quarantine those people in a particular place. That is what isolation is, and that is what a quarantine is. And you will notice that what the Idaho Code says lines up nicely with what I argued earlier with regard to quarantines, biblically defined. This is part of our scriptural heritage. But then, just because some important somebodies in authority panicked, all of that goes clean spang out the winder.

Shall I Tell You What I Think About All This?

Fret not. I shall not launch into scurrilous denunciations, or even into vituperative observations that mention the shape of anybody’s head. I shall be measured, and calm.

But I will tell you what I think.

The devastation that has occurred because of this panic in high places is not likely to have cameras trained on most of it. If the cameras are running, and someone walks up behind someone else and clocks him with a baseball bat, the cause and effect is easy to see. The fellow who does that sort of thing is therefore charged with assault. And this is because everybody can see that an assault is in fact what happened. What happened is visible to all.

But when the damage is done to millions of people, and a large number of well-connected other people profit from it, then the case devolves into a political battle. Factions and parties develop, and all the usual political tools, manufactured in our national laboratories of obfuscation, are deployed. And so the chances are excellent that during the course of the debate, the people directly affected will fade into a gray statistical twilight.

Meanwhile, the damage is actually done, and for those willing to look straight at it, there is no denying it. The people on the margins are the ones who will be hit hardest, but because political careers will be dependent upon not ever recognizing the damage we have done, the chances are good that that we will be compliant, and will not recognize it.

Scientific consensus is oxymoronic. Faith in the scientific process is one thing. Faith in scientists is quite another. Faith in scientific spokesmen (e.g. Fauci or Birx) is actually faith in telegenic people with scientific credentials who have been selected for political reasons. And that is why we have been slathering the nation broadside with scientific solutions when there should have been a scientific debate.

But there are some signs of hope. Despite what I just wrote, there are signs that a debate might occur anyhow, however belated, and I am doing my best to see that it happens. This was as debacle for the ages. And this leads me back to the theme of this post.

One of the “tells” that indicates that something is seriously wrong is that the governor of a conservative state like Idaho can simply announce that he is doing something, cite the part of the Idaho Code that authorizes him to do it, but then, when we go and have a sober look at that portion of the Idaho Code we find something else entirely. But we have written constitutions for a reason. We have legal codes, written down in big, fat books, for a reason.

The code says you can quarantine the sick. What was done was a quarantine of the healthy. The code says that you can isolate the contagious. What was done was the isolation of everybody.

Following this logic, the right to keep and bear arms means that you don’t have the right to keep and bear arms. The right to free speech means that you had better shut up. The right to assemble means that you can look at flickering images on Zoom, with no telling who is vacuuming up that data.

The time to kick is now.