Coronavirus, Exclusives, Featured, Gold Dome, Governor Polis, Politics, Scott Weiser, Uncategorized

Polis’ broad emergency power to close businesses, quarantine grounded in law, steeped in history

DENVER–On the orders of Governor Jared Polis, the Colorado Department of Public Health and Environment (CDPHE) on Monday ordered the statewide shutdown of all bars, sit-down restaurants, casinos, theaters and other places of public accommodation for an indefinite period to help stem the spread of the COVID19 coronavirus. This is accompanied by a ban on large gatherings.  Prior to that, Polis ordered the shutdown of ski resorts around the state.

Polis issued an Executive Order March 11 declaring a disaster emergency, formally documenting his verbal orders on March 3 to implement the state emergency operations plan and activate the Colorado National Guard to assist in the response.

The public health order was issued by Jill Hunsaker Ryan, Executive Director of the CDPHE.

The CDPHE has statutory authority “to establish, maintain, and enforce isolation and quarantine, and, in pursuance thereof and for this purpose only, to exercise such physical control over property and the persons of the people within this state as the department may find necessary for the protection of the public health.”

This order applies to commercial establishments at the moment, but is not a quarantine order.

Quarantine orders restrict the movements of individuals in a designated quarantine area. So far Colorado has issued recommendations to citizens to “socially distance” themselves and take other precautions, but no formal quarantines of communities have been issued.

“Public health agencies have issued formal quarantines to individuals who have been identified as a contact of someone with a confirmed case of COVID-19,” Michelle Hewitt, spokesperson for the CDPHE told Complete Colorado Tuesday.

Questions have been raised though, about the origin and scope of the government’s quarantine powers in a communicable disease emergency.

There is widespread misunderstanding about who has the authority in these situations. The concept of federalism places primary police power authority with the governor of a state, who may issue pretty much whatever orders are necessary to stem the infection.

The federal government has authority over national issues like interstate travel, closing borders and providing assistance to affected states either with money or supplies and personnel. But those resources must be requested by the state.

The power to quell infectious disease is one of the oldest powers of government. The regulations are typically enforced by public health officials but if necessary, police, National Guard and militia forces can be used to enforce a quarantine.

The word “quarantine” comes from the Italian “quaranta,” meaning 40 days.

The exercise of organized institutional responses to epidemics began, ironically, in Italy during an epidemic of the Black Plague spread by sailors, cargo and rats coming from the eastern Mediterranean starting in 1347 and continuing for the next 350 years. Ships were required to anchor at sea for 40 days if there was evidence of sickness among the crew.

In North America quarantine was introduced as early as 1688 in response to outbreaks of yellow fever and smallpox.

The Colorado Constitution and statutes give the governor very broad authority to manage emergency epidemics as defined in C.R.S 24-33.5-703.

An emergency epidemic means “cases of an illness or condition, communicable or noncommunicable, caused by bioterrorism, pandemic influenza, or novel and highly fatal infectious agents or biological toxins.”

Some of the express emergency powers of the governor are found in C.R.S. 24-33.5-704. These include:

  • Suspending regulatory statutes that would “in any way prevent, hinder, or delay necessary action in coping with the emergency.”
  • Utilizing “all available public resources as reasonably necessary to cope with the disaster emergency.”
  • Commandeering or utilizing “any private property,” provided that just compensation is paid.
  • Directing and compelling “the evacuation of all or part of the population from any stricken or threatened area within the state.”
  • Determining what “routes, modes of transportation, and destinations” are authorized.
  • Controlling who comes and goes and the movement of persons within and control occupancy in the disaster area.
  • Regulating or banning the “sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, or combustibles.”
  • Providing temporary emergency housing.

He also has other powers to direct and manage state assets and employees.

Should community quarantines be necessary, the governor has authority to keep people inside the quarantine zone using force if needed.

The governor is “commander-in-chief of the organized and unorganized militia and of all other forces available for emergency duty,” and has the “power to call out the militia to execute the laws, suppress insurrection or repel invasion.”

A general obligation of military duty exists in Colorado’s Constitution, which says the militia of the state consists of “all able-bodied male residents of the state between the ages of eighteen and forty-five years.”

In addition to the Colorado National Guard, which is today Colorado’s organized militia, Colorado statutes define a “State Defense Force” (SDF) comprised of “such citizens as shall volunteer or be ordered by the governor and qualify for service therein.”

The State Defense Force is explicitly in addition to and distinct from the National Guard and serves as the governor deems necessary.

Activated in 1917 and 1941 as the replacement for the Colorado National Guard when it was in federal service, the SDF has not been activated since the end of World War II, when its strength was 641 soldiers.

In an article “The Police Power of the States to Control a Pandemic, Explained” published in The Dispatch on Tuesday, Senior Editor David French writes, “Yes, states have the power to order closures in the face of a known, deadly pandemic. The closures are coming from governors because the governors have the relevant legal authority. No, state closings are not evidence the president is failing, they represent federalism at work.”

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