COVID and the Constitution

Rod Klingler Rod Klingler

By now you've undoubtedly heard people on one side of the mask issue claim that mandates are unconstitutional, and the other side say that it is constitutional. What is the truth?

Constitutionality of the Current Use of Public Health Department Authority

While Title 50, Section 304, of the Idaho Code [1] does allow cities to "establish a board of health" that can "pass all ordinances and make all regulations necessary to preserve the public health; prevent the introduction of contagious diseases into the city; [and] make quarantine laws", there is a lack of public confidence that the use of these powers is appropriate at this time.

This lack of confidence began with the governor's "emergency declaration" when only one person in the state had been diagnosed with COVID-19, and his reference to this as a "pandemic."

It was further questioned when he subsequently declared an "extreme emergency" despite there being no evidence that the virus was spreading wildly in the state, as actual pandemics are wont to do.

Further lack of confidence has been engendered through what can only be described as unnecessarily strident measures designed to "protect" the public from a threat that has not materialized.

Inasmuch as governments derive their power from the people, and inasmuch as those powers were given with the intent that they be used only when appropriate, we, the people, have withdrawn our consent for their use until such time as they are actually required, and then only when used appropriately.

In other words, our representatives were given authority to act, and to do so ONLY WHEN NECESSARY. The information in the entirety of this packet sufficiently demonstrates that IT IS NOT NECESSARY AT THIS TIME. Nor was it ever. 

Emergency powers have been abused

While powers were granted to the governor and health departments to be used in the event of actual emergencies, there is a lack of actual emergency in the current situation to justify their use.

According to Dr. Wolfgang Wodarg, "[C]oncerning the seasonal acute respiratory disease, commonly known as the flu, there is a mortality of 0.1%… That means that one in a thousand flu-infected inhabitants dies – every winter." [2]

According to, as of Nov. 21, 2020, there have been 847 deaths out of 1,826,160 people [3]. 847/1826160 works out to less than 0.05%, whereas one in one thousand Idahoans would be roughly 1,826 people, or less than 0.09%. This places Idaho at less than half of the generally expected deaths for a "winter" season.

We do not shut down our economy for the flu, nor impose mask mandates, or treat healthy people as criminals for going about their daily lives. We should ABSOLUTELY not be doing so now, when the death rate is less than half of a normal flu season!

The Most Important Thing: Public Health Districts Cannot Pass Laws!

As stated above, Title 50, Section 304, of the Idaho Code, delegates authority to the cities to establish boards of health. However, Idaho Code does not supersede the state Constitution. What does the Constitution say?

Article II, Section 1 [4], states that, "The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted."

The power of the legislative branch is to enact laws. Article III, Section 1 [5], reminds us that "The legislative power of the state shall be vested in a senate and house of representatives." In other words, only the House and Senate can enact laws that are binding on the public!

While health districts can make recommendations, they do not have the power to pass laws, no matter what was added to the Idaho Code in 1967! If we allow that, we no longer have "three distinct departments" of government, as mandated by our Constitution! "Boards of health" do not belong to the legislative, executive, or judicial branches, and are therefore not able to pass laws!

While the other things mentioned above are true, ultimately this is the only thing that matters.


[2] 12 Virus Experts: The King is Naked. COVID 19, Defending Utah

[3] Idaho Population 2020, World Population Review