A long trend: How the Idaho Legislature has removed local governments’ powers

Kyle Pfannenstiel, Idaho Capital Sun

BOISE (Idaho Capital Sun) — Early on in the COVID pandemic, Idaho Gov. Brad Little issued a temporary stay home order — temporarily closing some businesses and limiting public gatherings.

Months later, he ended the statewide measure. And he refused calls for a statewide mask mandate.

Instead, Idaho’s governor handed off most pandemic control measures to local governments. Some required masks and limited public gatherings at times.

This year — two years after the federal health emergency for COVID ended — the Republican supermajority-controlled Legislature stripped public health powers local governments did and didn’t use. Two new laws ban government mask mandates, along with medical mandates for vaccines, medical diseases diagnosis or treatment.

Those are among a handful of laws passed by the Idaho Legislature this year that will limit local governments’ policymaking powers.

The new laws deal with a range of issues — from banning more strict local child care regulations, limiting flags flown at government offices, and requiring big cities to regulate “public camping.”

It’s part of a longer trend of Idaho state lawmakers limiting local governments’ powers — like limiting raises to property taxes, and stopping localities from banning plastic bags or raising minimum wages.

“There is this ever present tug of war between ‘What is the proper role of local government?’ and ‘What is the proper role of the state government in telling the local government where their boundaries are?’” Senate President Pro Tempore Kelly Anthon told the Idaho Capital Sun in an interview. “And I think that that is going to continue forever.”

Defining preemption: How states limit local decision making

In the public policy world, moves by a higher level of government to limit the power of lower government are known as preemption.

In other words, it’s when a state blocks, or preempts, a local government from taking a certain action or pursuing a certain kind of policy.

Idaho Republican elected officials have long said they value local control and limited government. But they often carve out exceptions when they preempt local power.

“When you have Republicans saying that ‘It’s the government closest to the people that governs best,’ but yet they insert themselves as often as they do every year in the business of locals, I would say that they say one thing and then often do another,” Association of Idaho Cities Executive Director Kelley Packer told the Sun in an interview.

The Association of Idaho Cities says at least 14 Idaho bills this year sought to preempt local decisionmaking.

Sometimes, preemption is appropriate, said Packer, who used to be a Republican state lawmaker. She pointed to a bill this year that will block cities from requiring electric vehicle chargers in new developments.

“We as a city or any city should not be telling other elected officials or private developers that they have to put something in their development plans that doesn’t impact the health and safety of the city’s residents,” Packer said.

To Anthon, the top Idaho Senate Republican who has served in the Legislature for 10 years, deciding whether preemption is appropriate depends on the issue.

“A Republican would say ‘We absolutely support local control, so long as it doesn’t step on constitutional rights, the rule of law and … the constitutionally mandated powers of the state Legislature,’” said Anthon, a Republican from Rupert.

But to Idaho House Minority Leader Ilana Rubel, Idaho’s pattern of preemption laws “exposes” the Republican value of local governance as “complete fraud.”

“They have no interest in local government. They want government that aligns with their ideologies,” said Rubel, a Boise Democrat who has served in the Legislature for 11 years.

She rattled off examples: blocking local governments from flying LGBTQ+ pride flags, preventing local governments from responding to climate change, and blocking federal grants meant to help child care.

Idaho’s Republican control makes the state an interesting case study for preemption, Boise State University political science professor Alexandra Artiles told the Sun.

“On the one hand, preemption can contradict ‘small government’ values or the idea that city councils, for instance, can better tailor policies to localized needs,” she wrote in an email. “On the other hand, Idaho is one of the few states without constitutional Home Rule, a legal framework that helps to protect local governments from state preemption.”

What the Idaho Legislature did this year

Idaho’s new laws were among over a dozen bills state lawmakers considered this year to limit local decision-making.

Here’s a rundown of the new Idaho local preemption laws, signed by Gov. Brad Little:

Child care regulations

House Bill 243’s big policy shift is that it loosens Idaho’s state-set minimum child care staff-to-child ratios, effectively letting a staff member care for more children at a given time. That shift will make Idaho’s child-to-staff ratios the 45th loosest in the nation, up from 41st loosest in the nation, Idaho Voices for Children Executive Director Christine Tiddens previously told the Idaho Capital Sun. 

But on a local policy front, the bill also blocks local governments from having child care regulations that are more strict than what the state sets. 

The bill does that by repealing language in Idaho law that allowed for stricter local policy. The new law takes effect July 1.

Only nine cities license day cares, Packer said. That is largely in bigger cities — in response to emergency calls from parents whose kids got hurt, she said.

Mask mandates

House Bill 32 bans mask requirements for infectious disease by schools and Idaho government entities. The law took effect immediately after Little signed it into law in early March. 

Electrical vehicles

House Bill 86 preempts cities from requiring electrical vehicle charging stations or parking spots. The law took effect immediately after Little signed it into law on March 11.

Public camping

Senate Bill 1141 will ban public camping or sleeping in Idaho’s largest cities, essentially targeting people experiencing homelessness sleeping in public. The law allows the Idaho attorney general to civilly enforce the law against cities or county highway districts that knowingly violate the law. 

The bill takes effect July 1.

Flag restrictions

House Bill 96 restricts state and local government entities to only display official domestic government and military flags. Schools, colleges and universities are exempted from the flag bill’s restrictions.

While House lawmakers didn’t specifically mention it in the House’s floor debate, Boise City Hall has displayed the LGBTQ+ pride flag. The city continues to fly the flag, the Idaho Statesman reported Friday, despite the law already taking effect. 

Cars first, sidewalks and bike paths second

Two bills, Senate Bill 1140 and Senate Bill 1144, require highway districts to tailor new projects to cars — limiting new pedestrian or bicycle infrastructure, BoiseDev reported. 

Medical mandates

Senate Bill 1210 will create a broad medical mandate ban. It bars Idaho businesses, government entities, schools and colleges from restricting entry, employment or services based on requirements for medical interventions — like vaccines, medical diagnosis or treatment.

The law takes effect July 1. 

Idaho’s public health preemption leaves state less prepared for future pandemics, some say

Preemption is common in public health, Artiles, the Boise State professor, explains. In a previous research paper, she found governors issued over 1,200 preemptions related to COVID in less than the first two years of the pandemic.

But some officials worry Idaho’s public health preemptions this year leave the state less prepared to respond to future pandemics.

Most cities didn’t even require masks, and none of them required vaccines for entry to city halls, Packer said. (Public health districts in Idaho — essentially regional health authorities — did at times mandate masks and limit gatherings.) 

But the Association of Idaho Cities has pushed back on the mask mandate ban because, Packer said, “locals are the ones that have to answer immediately to any disaster that happens within the city or the county.”

“We don’t know what might come down the pike next — what we might be faced with,” Packer said.

COVID was unexpected, and left public officials to face tough choices. Some people wanted public health restrictions, and others wanted to be left alone, Packer said. 

Rubel thinks the new laws leave Idaho less prepared to deal with a future pandemic. She remembers the days that thousands of Americans died each day from COVID. A future pandemic might be even worse, she said.

“I hope we never see another pandemic in our lifetimes. But chances are, we probably will — with population growth and all the factors being what they are,” Rubel said. “I don’t know what we can fall back on at this point. Everything has been dismantled.”

A health freedom philosophy influenced bills in the Legislature this year, Anthon said. That’s along with a sentiment that the government had too heavy a hand in responding to the COVID pandemic, he added.

“That was the sentiment of a majority of the members of the Legislature this year. … And a belief that when you have to make these medical or health care decisions, it’s better done on an individual basis. And that if you give people the proper information, they will make those decisions on an individual basis better,” Anthon said. “And that there still can be a government reaction to stop the crisis, if you’ll better inform people.”