IFF’s Chinese Coronavirus Conspiracy Theory Won’t Hold Up In Court

Colin Nash
4 min readJun 19, 2020

There has been growing interest among far right members of the Idaho GOP to convene a special legislative session on June 23 to strip the Governor of his authority to manage the ongoing pandemic. This effort is backed by the Idaho Freedom Foundation which apparently hired a law firm from Arizona, who partnered with Skaug Law, a firm that employs Idaho GOP Chair Raul Labrador, to produce a legal rationale for the legislature to hold a special legislative session.

Under the Idaho Constitution only the Governor may convene a special session of the legislature, but only under extraordinary circumstances for the purposes he specifies. The legislature may take action outside of a session, but only to ensure the “continuity of government” during “disasters caused by an enemy attack.” This requires some very creative legal reasoning for the legislature to argue authoritatively that it can call a special session this Summer. The attorneys representing IFF present three legal theories in their memorandum that could be used to justify a special session. I’ll give you four reasons why they’re kidding themselves.

  1. Who is going to bring the lawsuit?

The memo does not address this, but before anyone can argue in court why the legislature has the authority to convene a special session, they need to show that they’re actually trying to do that. We’ve yet to see support from the Governor or GOP leadership for a special session. If the legislature as a body doesn’t take any affirmative action to convene a special session, there isn’t anyone other than the Governor that could effectively sue them to do so.

2. Legal Theory #1-the Idaho Supreme Court does not have authority to interpret the Idaho Constitution

The Idaho Supreme Court is charged with interpreting the Idaho Constitution and resolving disputes that arise over disagreements about its meaning. For example, they are currently deciding a case between Superintendent Ybarra and the legislature over her constitutional authority as Superintendent of Public Instruction, and whether or not by taking away her staff did the legislature unconstitutionally limit her ability to carry out her duties.

A rarely used legal theory is the political question doctrine. It is when a court decides that a dispute is so fundamentally political and not legal in nature, that the court will hold that it should not decide the case. This would require the Idaho Supreme Court, charged with interpreting the constitution, to rule that it does not have authority to interpret the legislature’s constitutional authority to convene a special session. Political question doctrine is so rarely used that you could count the number of times it has been invoked by both the Idaho and U.S. Supreme Courts. There is no legal precedent in Idaho case law that would prevent the courts from answering the constitutional questions presented here.

3. Legal Theory #2- “China has launched an enemy attack against Idaho”

The title kind of says it all. Basically the legislature would have to prove in court that Idaho is under enemy attack, and the continuity of government is threatened without a special session. But other than some slow unemployment checks, it does not appear that COVID-19 has disrupted government operations in any serious way. Also, U.S. medical experts have debunked the conspiracy theory that coronavirus originated in a laboratory, let alone been a part of an intentional attack on our state.

Other than being based on lies, another problem this creates for the Idaho GOP is that it contradicts their public messaging on coronavirus and the Governor’s response. They would be arguing that coronavirus has caused a disaster so devastating to the public unlike anything before in our state’s history, that it requires a special legislative session, while publicly criticizing the Governor for overreacting for what they call a media-driven hysteria surrounding COVID-19 and holding a session with the intention of stripping the state government of authority to effectively manage the crisis.

So which is it? A never-before-seen enemy attack threatening our government’s very existence? Or a nothing-burger that requires a check on executive overreach?

4. Legal Theory #3- “Nothing says we can’t do it”

This theory holds that because the legislature is not explicitly prohibited from convening a legislative session whenever it wants, that it has the authority to do so. But since the Idaho Constitution expressly provides the criteria for when a special session may be convened, and only gives the Governor that authority, it is safe to say that the legislature is limited by this language, because it is evidence that if the drafters wanted the legislature to have broader authority, they would have spelled it out like they did for the Governor.

Conclusion

I think it is unlikely that there is sufficient political support from the legislature to call for a special session, let alone sue for one, especially given the Governor’s recent public statements that give the impression he will be reluctant to engage in a uniform statewide strategy to manage the pandemic moving forward. But even if the legislature tries to convene a special session, it would be an uphill battle on very shaky legal grounds.

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Colin Nash

Boise, ID. Attorney and State Representative in the #idleg. I tweet @colinmnash.