Constitutional Law, Coronavirus, Exclusives, Featured, Governor Polis, Legal, Rob Natelson, Uncategorized

Natelson: Latest COVID orders layer chaos over confusion, add to risk

Over the last 50 days Coloradans have been pelted with 42 new or amended state coronavirus executive orders. Add to that 12 more from the Colorado Department of Public Health and Environment (CDPHE), as well as numerous decrees from local governments.

While under this deluge it is best to know every order controlling your conduct—that is, if you want to be safe. After all, they cumulatively regulate almost every aspect of your life. If you violate one, you face a fine of up to $1000 and jail time up to a year. Multiple violations could mean multiple penalties.

If you want to be safe, you have to read them all together. If a state decree permits what a county decree prohibits, the county one controls. If the county order permits what a state order prohibits, then the state order controls. You must follow whichever rule most restricts your freedom.

Also, to be safe you can’t rely only on the most recent pronouncements. Some orders amend others or otherwise refer back to them. This means you have to keep track of what has changed and what has not.

To be really secure, you have to hire a lawyer. You’ll need someone to decipher the more opaque language. That will take time, because some of these documents are quite long. For example, Public Health Order 20-28—the new CDPHE “safer at home” decree—consumes 34 pages of typing. Most of it single-spaced.

If you want to be safe, you or your lawyer should create or buy a software program to keep track of everything, in particular what has been superseded and what remains in effect.

But if you do all these things and earnestly try to comply, will you really be safe?

No. Because some of the language is ambiguous or otherwise vague. So only when you are under arrest, will you learn which interpretation the government prefers. Anyway, let’s face facts: You can’t be on your guard every minute, and when you slip up, someone will be watching. Nowadays Colorado government encourages people to snitch on their neighbors.

The sheer volume of mandates, their variations and vagueness, their overlapping and occasional inconsistency, and the encouragement of officious informers—These things all work together to empower government to prosecute (or not), as it pleases. “You bring me the man, I’ll find you the crime,” said Lavrentiy Beria, Stalin’s chief of secret police.

Thus we are, as Dennis Prager points out, importing the police state to America.

Let me make the necessary concessions. After all, I don’t want the state-compliant media calling me a “COVID denier” or charging that I’m blinded by greed or ideological extremism.

It is true that this pandemic is serious—even if far less so than, say, the Spanish Flu or Black Death. The state’s orders feature many provisions that are both justified and well-precedented. Social distancing, banning large crowds, closing theaters and arenas, imposing special health regulations on business, quarantining the sick and severely-afflicted areas, and requiring masks: They’ve all been done before, and rightly.

What we have not seen previously in peacetime America is the level of caprice, extent of intrusion, and the unholy destruction wrought by this hurricane of decrees.

Consider the “safer at home” orders just issued by the governor and by CDPHE. They are advertised as loosening our fetters. But in some respects they tighten them. Furthermore, they add to general confusion. Here’s what I mean:

The governor’s latest directive, unlike previous ones, orders CDPHE to order Coloradans to “limit social interactions to the greatest extent possible.” The governor leaves the term “social interactions” undefined. Taken literally, it is very broad. Does it include visiting our grown children? Certainly. Does it include chatting with our neighbors? Clearly. Does it include interacting with our spouse or talking on the telephone, or holding meetings on Zoom? Taken literally, yes. But who really knows?

The governor’s new edict also tightens rather than loosens travel restrictions. Previously we could drive to the great outdoors, secure in the knowledge that we were headed toward an officially-blessed “Necessary Activity.” But in his latest order, the governor tells CDPHE to ban recreational trips of more than ten miles. (Apparently the crowd around the governor doesn’t know that some parts of Colorado are so spread out you can’t get spit within ten miles.)

I can think of few acts of tyranny more hateful to Coloradans than fencing most of us away from our beloved mountains. Will this, I wonder, provoke the long-overdue public uprising? Who knows?

There’s more. The governor’s new order defines all people 65 years or over as “vulnerable individuals” and consigns them to house arrest. It makes no distinction between the athletic 65-year-old and the obese 82-year-old. Yet the former is unlikely to die of COVID-19, or even require hospitalization, while the obese 82-year-old is at serious risk.

But wait . . . Has the governor really consigned these “vulnerable individuals” to house arrest? Maybe. Or maybe not. It all depends on how those in power choose to read his order.

It states, “this Executive Order continues . . . stay at home requirements for Vulnerable Individuals.” But this sentence is in the section entitled “Background and Purpose.” In other words, it is in a preamble. Preambles generally are explanatory only: They set forth the “background and purpose.” They have no substantive force.

In the substantive part of the document, the governor phrases it differently: “Vulnerable Individuals should Stay at Home.” That’s significant, because when a legal instrument uses terms like “order,” “direct,” and “must”—and then switches to “should”—that normally means the “should” stuff is advisory only, not mandatory.

So which is it? Probably no one knows.

What of the order’s discrimination on the basis of age? Normally, the Constitution permits age discrimination by government, even if it seems unfair. (Just don’t try it in the private sector!) In this case, however, the rule impairs—in an over-broad manner—what the Supreme Court calls the “fundamental right to travel.” That makes it constitutionally defective. Is Governor Polis as ignorant of constitutional rights as New Jersey’s Governor Murphy has admitted he is?

Perhaps so: Polis had an opportunity to cure CDPHE’s flat ban on most uninterrupted travel by out-of-staters though Colorado—a ban that is almost certainly unconstitutional—but he didn’t take it.

In a few respects, the governor is being sly. If you read his decree carefully, you’ll see that sometimes he didn’t prohibit activities directly. Rather, he instructed the bureaucrats to prohibit them! For example, he told CDPHE to “Order Coloradans to limit . . . [s]ocial interactions to the greatest extent possible except as required to conduct Necessary Activities; and . . . Essential Travel to within their county of residence or employment as much as possible and recreational travel to no further than ten (10) miles from their residence.”

The folks at CDPHE were compliant enough to command us to “avoid unnecessary social interactions”—whatever that means. But they did not ban trips longer than ten miles. Instead, their pronouncement reads, “Travel for recreational purposes should be limited to your own community like your county of residence or traveling no more than about 10 miles.” (Italics added.) In context, the document’s switch to the word “should” indicates that the 10-mile limit is merely advisory. Moreover, you can justify longer trips if you live in a large county. (Sorry, Broomfield!)

So maybe notwithstanding the governor’s preference, eleven-mile trips are actually still allowed. Who knows?

On April 28, the Colorado Sun called the latest CDPHE order “vague.” The newspaper also dryly observed that “The agency didn’t answer a question about what specific penalties people could face for violating the directive.”

That’s because everything must remain discretionary for the government. But not for you.

Add to this vat of toxic soup that some counties have rejected entirely the “safer at home” regime. Apparently it is not authoritarian enough for them. Denver, for example, has extended its general lock-down until May 8. Meanwhile, Denverites will be subject to both the new restrictions in the governor’s order AND the older restrictions in Denver’s order.

In issuing his latest directive, the governor missed opportunities to quit being an autocrat and start being a statesman. He could have lifted those restrictions on travel that are most likely unconstitutional. He could have eased restrictions in those rural counties shown to be nearly virus-free. He could have allowed general business openings under strict health regulations. He might have corrected, or at least convincingly justified, such anomalies as why pot shops are “critical” but tobacco stores are not. Or why Costco stays open while Hobby Lobby is shuttered.

And of pre-eminent importance: The governor should have announced in clear and unequivocal terms that, except in the most serious cases, snitching on your neighbor is unwelcome, un-American, and thoroughly inconsistent with Colorado values.

But he did none of those things. What a shame.

Rob Natelson, Senior Fellow in Constitutional Jurisprudence at the Independence Institute, formerly served as professor of constitutional law at the University of Montana. He also has extensive experience both in the private sector and in government and politics. While in Montana he led several successful ballot issue campaigns and in 2000 placed second among five candidates in the bipartisan party primaries for governor.

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