In my last column I explained that the Denver lock-down order is probably unconstitutional because it is over-broad. The U.S. Supreme Court recognizes a fundamental constitutional right to travel—and while state and local governments may infringe that right somewhat during an emergency, their response has to be a targeted one. The Denver order is not targeted but sweeping.
Now Governor Jared Polis has issued a statewide executive order. Some media personalities predicted this would create statewide uniformity. In fact, the governor has piled Pelion upon Ossa: to unconstitutionality, he has added legal chaos.
To understand why, you have to know how the governor’s directive interacts with other official pronouncements. Let’s start with three important characteristics of the governor’s order:
- It applies only to “Coloradans,” not to out-of-staters.
- It provides that county lock-down rules remain in effect—but only to the extent that the county rules are more restrictive than state rules. In other words, if you can do it under the state order but can’t under the county order, then you can’t do it.
- Otherwise the governor’s directive contains relatively little substance. As is common practice in the Congress where he used to serve, Governor Polis (a) has made a public relations splash while (b) passing on to bureaucrats the difficult and unpopular responsibility of actually writing the rules. In this instance, the bureaucrats are located in the Colorado Department of Public Health and Environment (CDPHE).
So if you want to see the rules governing you, reading the governor’s order won’t get you very far. You also have to inspect your own county’s orders (if any) and a CDPHE document entitled Public Health Order 20-24.
Public Health Order 20-24 is an 11 page, mostly single-spaced, mash of bureau-fog. It contains some striking features, however. For example, it says it is issued “pursuant to the Governor’s directive.” As just stated, that directive explicitly applies only to “Coloradans.” Yet the order attempts to impose rules on out-of-staters.
Specifically, its language seems to ban out-of-staters from traveling through Colorado unless they are returning home. Depending on how you interpret it, the order may also block Coloradans and out-of-staters from transporting most goods across the state, even en route to other destinations. In that respect, the order seems just as unconstitutional as the county decrees that say the same thing. (Observe that I’m using equivocal words such as “seems,” “may,” and “depending on how you interpret.” This is because these documents are poorly drafted and their intended meaning, if there is one, is often muddy.)
There are some important differences between the statewide order and county directives. In some parts, the statewide order is more restrictive—and therefore controls your behavior. In other parts, it is less restrictive, so according to the governor, the harsher county rules control your behavior.
First, like the county decrees, the statewide order contains a marijuana exemption, but it imposes more restrictions on sale: the pot must be either medical marijuana or provided by “curbside delivery.”
Of course, it is difficult to justify exemptions for booze and pot as “essential” (in the language of the county orders) or “critical” (in the language of the state order) except on political grounds. That’s one of many reasons these orders are not targeted sufficiently to make them constitutional.
Interestingly, while county orders exempt booze and pot and the CDPHE pronouncement exempts pot and liquor, there is no corresponding loophole for tobacco stores such as Smoker Friendly. Clearly in our state the liquor and pot lobbies are stronger than the tobacco lobby.
A second way in which the statewide order is more restrictive than county orders is that that the former exempts only skilled tradesmen working in construction while the latter seems to exempt all skilled trades.
No doubt some Coloradans will be comforted by the fact that you still may travel to another person’s house to feed pet fish. Both the governor’s directive and the CDPHE classify that as “necessary.” But if you are like most people, you may not commute to your job, no matter how safe your work environment is. In the bureaucratic world, that’s not necessary.
In other respects, the statewide order is less restrictive than local orders. Perhaps the most important example is that county orders seem to ban travel to parks and outdoor activities outside the county. Thus, a Denver resident may walk to a Denver park, but not drive to, say Roxborough State Park in Douglas County.
On the other hand, the statewide directive permits travel to state parks and, by implication, outdoor recreation anywhere in the state. But Denver residents still seem to be confined to Denver because their local order says so, and the governor tells us that stricter rules prevail over looser ones.
No sensible person disregards the seriousness of the COVID-19 epidemic or the need for responsible government action to mitigate it. But every sensible person understands that response must be measured and proportionate, especially when people’s livelihoods and constitutional rights are at stake.
Unfortunately, Colorado has become a case study in bureaucracy run wild—and bureaucracies are not always sensible, particularly in a crisis. Citizens should challenge these house arrest orders in every legal way possible.
Editor’s note: After this article was written, several counties rescinded their orders, admitting the kinds of inconsistencies pointed out in the article. Other inconsistent local orders remain in effect.
Rob Natelson is both a retired constitutional law professor and a constitutional historian. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute.