Posted by Kevin
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https://www.loweringthebar.net/?p=46734
Question Presented: What is an “emergency” for legislative purposes?
Brief Answer: Whatever the legislature says it is.
In March, the Idaho Legislature declared that an “emergency” existed in that state requiring it to immediately criminalize the public exposure of—among other things—any human breast (except for breastfeeding purposes). Many of you are probably thinking, “wasn’t that already illegal in Idaho?” and the somewhat surprising answer is no. But it is now, and I guess … not a moment too soon?
House Bill 270, which the governor has since signed into law, amended and expanded the state’s “indecent exposure” statute. Previously, it criminalized only the exposure of what I will refer to as one’s “business” in any public place “or in any place where there is present another peron or persons who are offended thereby….” Idaho Code § 18-4116. But the bill expands this to punish one who similarly displays “toys or products intended to resemble” male or female business, or exposes “developed female breasts,” real or artificial. The concern about “toys or products intended to resemble” human business is what seems to have gotten the bill dubbed “the truck nuts bill,” following mockery to that effect by Melissa Wintrow, Idaho’s Senate Minority Leader.
“They’re gross, they’re offensive, and kids on the road see them. So why wouldn’t the police get a call and say, ‘That offends me, pull it off the truck?’” Wintrow said. “Because now this bill will allow it. And I talked to police and they said, ‘Indeed it would.’”
Well, the Idaho Supreme Court will be the ultimate judge of that, or at least I certainly hope it will. But set aside for a moment what this bill covers, or requires to be covered. In what universe, you may be asking, does any of this constitute an emergency? Were there signs that Idaho was about to collapse into ruin and savagery due to wanton displays of the human breast? Or truck nuts? And what does a declaration of said emergency even mean? Well, I’m glad you asked, if you did.
Here, the “emergency” declaration relates only to when new legislation takes effect. Usually, it doesn’t take effect immediately. In California, for example, new laws usually take effect on the following January 1 or 90 days after enactment; in Idaho, it’s July 1 or 60 days after the end of the session; whichever is later. But those are just default rules that a legislature can change if it wants a law to take effect immediately.
In California, this is called “urgency” and there are some limits on it. It takes a two-thirds vote; the bill must contain “a statement of facts constituting the necessity”; and this is only supposed to happen if it’s “necessary for immediate preservation of the public peace, health, or safety.” Cal. Const. art. 4, § 8. If a bill is “urgent,” it takes effect immediately, though there’s generally a minimum 72-hour “notice” requirement. Even that can be suspended in case of a real “emergency,” but in California an “emergency” has to be declared by the governor.
In Idaho it’s sort of the other way around: there is a 72-hour requirement apparently meant to ensure notice to legislators, but a two-thirds majority can dispense with that in case of “urgency.” Idaho Const. art III, § 15. An act can take effect immediately upon passage “in case of emergency,” but in Idaho the legislature just has to use the word: the “emergency shall be declared”—not necessarily explained—”in the preamble or in the body of the law.” Idaho Const. art III, § 22. A majority vote is enough, and, as you have probably guessed, there is no definition of “emergency.”
In both states, laws have been challenged on the grounds that there was no “urgency” or “emergency,” but it appears this has never worked. That’s not surprising, because courts are going to defer to the executive or legislature most of the time due to separation-of-powers concerns. But in California, at least, the constitution limits “urgency.” In Idaho, a challenge would have to be based on the common meaning/dictionary definition of “emergency.” But even then it looks like the Idaho Supreme Court has basically said, that’s up to the legislature, period. If the “emergency” declaration infringed on someone’s civil rights, that might be different, but it would probably have to be pretty stark to get the court to do anything.
That’s why, unfortunately, a challenge to the Truck Nuts Bill on this basis would fail, even though there is no universe, not even this one, in which this bill involves any sort of “emergency” as non-legislators understand that term. The people of Idaho don’t seem to have suffered greatly, or really at all, from the occasional public display of a breast or the nuts of a truck before now, so it seems like it would’ve been safe to wait a few months to make these things a crime.
But wait … could there be something else going on? The bill also criminalizes, for the first time, the exposure not only of female breasts but also “adult male breasts … that have been medically or hormonally altered to appear like developing or developed female breasts….” Hm. What could that possibly be about? Well, some have suggested it is intended to target transgender Idahoans, a suggestion apparently based on the lack of any other plausible way to interpret the language used by the bill’s GOP sponsors. I have seen no reference to any incidents in which one or more transgender Idahoans has actually exposed the relevant thing or things, and suspect this is just as much an “emergency” as the non-situation recently mentioned in the Texas F.U.R.R.I.E.S. Act. See “Assorted Stupidity #168,” ¶ 7 (May 16, 2025).
I also suspect that the new law may be selectively enforced. But if one day the Idaho Supreme Court’s parking lot is filled with indecent pickup trucks, we’ll know that didn’t happen.
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