MILITIA AND MILITARY AFFAIRS
MARTIAL LAW AND ACTIVE DUTY
46-601. authority of governor.
(1)(a) The governor may proclaim a state of extreme emergency and then order into the active service of the state the national guard, as he may deem proper.
(b) "State of extreme emergency" means:
(i) The duly proclaimed existence of conditions threatening the safety of persons or property within the state, or any part thereof, caused by an enemy attack or threatened attack; or
(ii) The duly proclaimed existence of conditions threatening persons or property within the state, or any part thereof, caused by such conditions as fire, flood, storm, epidemic, pandemic, volcano, earthquake, violent insurrection, riot, revolt, explosion, cyber attack on critical infrastructure, or other conditions that 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 or result in mass casualties.
(c) "Enemy attack" means an actual attack by terrorists or a foreign nation by terrorism, hostile air raids, or other form of warfare upon the state or any other state or territory of the United States.
(d) "Violent insurrection" means a violent movement or violent actions by persons intending to overthrow the lawful government.
(e) "Terrorism" is as defined in section 18-8102, Idaho Code.
(2)(a) During a declared state of extreme emergency, the governor shall have authority over all executive agencies and departments of the state government, including all separate boards and commissions, and the right to exercise within the area or regions wherein the state of extreme emergency exists, subject to the provisions of this section, police power vested in the state by the constitution and the laws of the state of Idaho; provided, however, that the governor’s exercise thereof must be limited to promulgation, issuance, and enforcement of written rules and orders necessary to support the national guard, essential to protect life or property, ensure the continuity of the constitutional form of government, or that are otherwise required to mitigate serious harm created by the conditions giving rise to the state of extreme emergency. Such rules and orders must be narrowly focused without placing unnecessary restrictions on the ability for a person or persons, regardless of job type or classification, to work, provide for their families, or otherwise contribute to the economy of the state of Idaho.
(b) Such rules and orders must, whenever practicable, be prepared in advance of extreme emergency, and the governor shall cause widespread publicity and notice to be given of such rules and orders. Rules and orders issued under the authority of this section must not become operative until the governor proclaims a state of extreme emergency. Such rules and orders shall be filed in the office of the secretary of state as soon as possible after their issuance. A copy of such rules and orders shall likewise be filed in the office of the county clerk of each county, any portion of which is included within the area wherein a state of extreme emergency has been proclaimed.
(c) The state of extreme emergency must terminate by either the expiration of the period for which it was proclaimed or the need for said state of extreme emergency has ceased.
(d) Whenever the governor declares a state of extreme emergency encompassing twelve (12) or more counties, the powers granted by the legislature to the governor in paragraph (a) of this subsection shall be revoked on the ninetieth day of the proclaimed state of extreme emergency unless the legislature is in regular session or the governor issues a proclamation convening an extraordinary session of the legislature for the purpose of having the legislature vote on whether to revoke any or all powers granted to the governor in paragraph (a) of this subsection. If the governor elects to issue a proclamation convening an extraordinary session, such proclamation must identify a date for the legislature to convene that is no later than twenty-one (21) days after the issuance of the proclamation. The governor, consistent with section 9, article IV of the constitution of the state of Idaho, may identify additional subjects for legislation during the extraordinary session, including the appropriation of necessary emergency funds.
(e) In the event those conditions giving rise to the state of extreme emergency prevent or render it impracticable for a legislator to participate in the regular or extraordinary session, the legislator shall be replaced by an interim successor designated and qualified in accordance with the emergency interim legislative succession act, as provided in sections 67-413 through 67-426, Idaho Code.
(f) The governor may not circumvent the ninety (90) day limitation by redeclaring successive states of extreme emergency for the same conditions that gave rise to the proclaimed state of extreme emergency.
(3) During any proclaimed state of extreme emergency, insurrection, or martial law, neither the governor nor any agency of any governmental entity or political subdivision of the state shall:
(a) Impose or enforce federal restrictions prohibited under Idaho law on the lawful possession, manufacturing, transfer, sale, transport, storage, display, or use of firearms or ammunition or otherwise suspend or unconstitutionally limit any rights guaranteed by the United States constitution or the constitution of the state of Idaho, including but not limited to the right to peaceable assembly and free exercise of religion. The transport, storage, transfer, sale, import and export, distribution, repair, maintenance, and manufacture of and commerce in firearms, ammunition, and related accessories and components, shooting ranges, and other goods and services directly related to lawful firearm possession, use, storage, repair, maintenance, sale or transfer, and training in the use of firearms are declared to be life-sustaining, essential businesses and services for the purposes of safety and security in times of declared emergency or any other statutorily authorized responses to disaster, war, acts of terrorism, riot or civil disorder, public health crises, or emergencies of whatever kind or nature;
(b) Suspend or revoke a license to carry concealed weapons or refuse to accept and process an application for a license to carry concealed weapons, except in accordance with the provisions of chapter 33, title 18, Idaho Code; or
(c) Notwithstanding the provisions of subsection (5) of this section, seize, commandeer, or confiscate in any manner any privately owned firearm, ammunition, or firearms or ammunition components that are possessed, carried, displayed, sold, transferred, transported, stored, or used in connection with otherwise lawful conduct.
(4) During any state of extreme emergency, the governor may not alter, adjust, or suspend any provision of the Idaho Code but for good cause may temporarily suspend enforcement of particular provisions that prevent, hinder, or delay necessary action to respond to the state of extreme emergency. The governor shall file a notice describing the temporary suspension of enforcement of any particular provisions with the office of the secretary of state as soon as possible after such suspension, and copies thereof shall be delivered to the speaker of the Idaho house of representatives, the president pro tempore of the Idaho senate, and the chief justice of the Idaho supreme court.
(5) Nothing in this section shall prohibit the governor from deploying the national guard as he may deem proper.
[46-601, added 2021, ch. 359, sec. 3, p. 1108; am. 2022, ch. 229, sec. 1, p. 748.]