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Natelson: Unelected officials shouldn’t have such power; a proposal for reform

When county health departments issued sweeping, and over-broad orders throwing people out of work and largely closing down the economy, Coloradans suddenly faced a question that hadn’t occurred to them before: How did unelected bureaucrats get such power?

The question was presented most graphically in Douglas County, where the Tri-County Health Department imposed its will on that county in defiance of a majority of the elected county commissioners.

At the state level, the governor issued a directive purporting to authorize a lock-down order from the Colorado Department of Public Health and Environment (CDPHE). But as I pointed out here, the Department’s order actually exceeds the scope of the governor’s “authorization.”

And of course, none of these agencies held public hearings before issuing its decrees.

Every sensible person recognizes the need for government action in the current pandemic. But elected officials ought to be the ones who make decisions this important and this sweeping—especially when those decisions are backed by the full weight of the criminal law. (Violation of a state health order is punishable by a $1000 fine and up to a year in jail. CRS 25-1-114.)

The fundamental problem is that state law simply delegates too much power to these agencies. Normally, we think of a public health order as a rather modest thing, such as requiring a restaurant to clean up its kitchen or a company to stop polluting a water supply. But state law authorizes unilateral health department actions that far exceed such modest levels.

State law grants county agencies power to close schools and limit gatherings. It authorizes them to “control the causes of epidemic or communicable diseases and conditions affecting public health” and to “establish, maintain, and enforce isolation and quarantine” and “to exercise physical control over property and over the persons of the people within the jurisdiction of the agency as the agency may find necessary for the protection of the public health.” (CRS 25-1-506)

Those are truly massive powers. With a little creativity, county agencies can justify doing almost anything—as in fact, they just have.

The CDPHE has similarly sweeping 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 person of the people  within this state as the department may find necessary for the protection of public health.” (CRS 25-1.5-102). No wonder CDPHE felt empowered to exceed the governor’s authorization!

No free people should concede to any unelected agencies the kind of power Colorado state law now grants its state and county health departments. In its next session, the legislature should consider the following reforms:

* If a health department believes that widespread, disruptive action is necessary to deal with a health problem, the department should make an appropriate recommendation to the relevant elected public officials. At the county level, the relevant officials are the county commissioners; at the state level, the governor.

* The elected officials should, on short notice, offer an opportunity for public suggestions or comment.

* If the elected official determines that action must be taken even more immediately, then that official may implement all or part of the department’s recommendation for up to ten days, during which time there shall be an opportunity for public suggestions and comment.

* At the end of that period, the elected official may repeal, modify, or re-affirm the order.

* No department may issue an order exceeding the scope authorized by the relevant elected officials.

* Constitutional challenges to all or part of an order in which the plaintiff seeks injunctive relief shall receive expedited hearing in state courts, with the state or county defending the order.

Rob Natelson, a retired constitutional law professor and historian, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver.

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