COVID-19 restrictions have lasted so long and have narrowed the right to gather to such an extent that some legal scholars say some measures taken to limit transmission of the virus are impinging on constitutionally protected civil liberties.
“When states are completely prohibiting individuals from exercising their religion, based on the tenets of those religions, as well as exercising their right to purchase, keep and bear arms, as well as completely prohibiting their ability to assemble as they see fit, these are situations when everybody’s senses and concerns should be heightened,” said Cody Wisniewski, an attorney with the Mountain States Legal Foundation, a nonprofit public-interest law firm focused on protecting property rights and economic rights.
The Level Red restriction banning in-person social gatherings with any person from outside the household is especially problematic, Wisniewski said.
Especially during the holidays, he said, extended family members from multiple households often gather in a single house for religious purposes, and any ban on such gatherings is on shaky legal footing.
Can the Constitution and COVID restrictions coexist?
“If you’re telling people they can’t gather in their own home with other individuals or get together for the holidays, especially for religious reasons, I think those restrictions are incredibly problematic,” he said. “Setting aside religion, even the idea that a county can tell you that you can’t have a family member over from a different household for Thanksgiving dinner, is problematic.”
Colorado Gov. Jared Polis’ office did not immediately respond Friday to requests for comment.
Dan Burrows, legal director of the Public Trust Institute, a Colorado nonprofit created to defend individual freedoms based on the state’s Constitution, said what bothers him is that public health orders have been assembled so quickly and with such haste they have not examined in any robust way if the limits impinge on the Constitution.
“Our public officials take an oath to support and defend the Constitution,” he said. “And it seems like they have just decided to do whatever they want and then let the courts sort it out. And that’s a violation of their oath as officeholders to support and defend the Constitution, and that, to me, is dishonorable, frankly.”
The peril from COVID-19, now entering its ninth month in the United States, has lasted so long that Burrows said the time has come for legislative bodies to establish laws for dealing with outbreak.
He praised the state of Kansas, which has adopted a law that emergency executive orders from a governor can last for only 45 days unless the Legislature passes a resolution allowing them to continue.
“What really bothers me is that we have no legislative involvement,” he said.
In Colorado, the Legislature has yet to deal with passing laws to address the COVID-19 pandemic. In the counties, health departments, rather than county commissions, have taken the lead in setting restrictions, and that is problematic for Burrows.
“What bothers me more than anything,” he said, “is that we have unelected bureaucrats at county departments of health making these decisions, rather than the people that we’ve actually elected – the people that if they’re making decisions we don’t like or are unconstitutional, we can vote them out. You can’t vote out a county health director.”
Burrows said it is within the established powers of the executive branch to make emergency orders when crises emerge, like the COVID-19 pandemic, but emergency powers should be temporary with legislatures acting to establish the laws for dealing situations that become permanent features of life.
“Gov. Polis is just being human in using the powers he’s been given,” Burrows said. “The people who have really abandoned their responsibility is the Legislature, which has ceded these powers to him. He’s only exercising powers that the Legislature has already voted and agreed to give him, which is not what people assumed would happen when they were talking about separation of powers.
Wisniewski concurred that the length of time COVID-19 emergency restrictions have been in place is becoming increasingly open to legal questions.
“The idea about emergency orders is that it’s an emergency and they end,” he said.
Polis recently called the Legislature into a special session to discuss economic relief measures to help Coloradans weather the COVID-19 storm, but Wisniewski said the special session should also address the emergency restrictions – giving legislative backing to any restrictions required to battle the novel coronavirus going forward.
“If the Colorado General Assembly can convene, then it’s no longer appropriate for a governor to be issuing an executive order or an emergency order,” he said. “... You cannot say it’s an emergency any longer when you’ve got the Legislature meeting and discussing legislation. They should be representing the individuals who elected them, and they should be discussing the entirety of the COVID response, not just economic relief.”
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