2020 Leg Session, Columnists, Coronavirus, Featured, Gold Dome, Jon Caldara, Politics, Uncategorized

Caldara: Rethinking emergency powers should be high on legislature’s list

The highway entrance ramp I use to get to work is my measuring stick for Colorado’s slow re-opening. recently, I had to, for the first time in a month, slow down and weave between cars to get on the highway.

Looks like we are crawling out of our home arrests. Which also means the Colorado legislative season will soon restart, too.

Since some are predicting a resurgence of COVID as the weather grows cold again in the fall, the legislature should learn from our recent experiences and use their prolonged session to adjust our laws for the next potential “emergency.”

Here are three suggestions for the legislature to tackle immediately.

Only elected officials should have emergency powers: Many of us were surprised to learn that unelected bureaucrats had the authority to place us under house arrest.

Before Gov. Polis ordered his statewide lockdown order, the tri-county health department, servicing Adams, Arapahoe and Douglas counties, ordered businesses closed and people locked in their homes. They did so over the objections of elected county commissioners whom they supposedly answer to.

It is unthinkable that under current law technocrats with no direct accountability to the people have such unchecked power. No one who can’t be voted out of office or recalled should have the power to declare emergencies and rip away basic liberties.

A top priority for the legislature must be to change the law so that only people directly elected by voters have the final say in exercising “emergency powers”.

Why this isn’t already the law is simply repugnant. It is likely a result of the many laws passed last time people were rushing to trade liberty for a false sense of secure after the 9-11 attacks.

Make 120 days, 120 days again. We the people passed the GAVEL Amendment in 1988 limiting the legislative session to 120 calendar days to, among lots of other good reasons, ensure that we have citizen legislators with real jobs outside of the gold dome.

After the COVID shutdown the Colorado supreme court nonsensically ruled that the term “calendar days” is “arbitrary” and can be re-interpreted by the legislature. When we passed the amendment back in 1988 it was made clear to voters, as it is clear in every loan you’ve ever signed, that “calendar” days are consecutive days.

The legislature needs to return the session back to a limited, consecutive 120 days, or even shorten it to 90 days as many states have. Since this may require clarifying the state constitution the legislature may have to refer it to the fall ballot for voter approval.

(Let me take this opportunity to again sarcastically thank the state’s oil and gas interests for foolishly backing Amendment 71 four years ago which now requires a 55% super majority vote to make even a minor correction, like this one, to the constitution. Oil and gas, you just made it easier for the legislature, which despises your industry, to stay open all year and cripple you more.)

Emergencies demand more transparency, not less: During an emergency, people — some literally making life-and-death decisions — need information more than ever. The need for governmental transparency is dire and immediate.

Throughout this crisis our leaders have been trying to balance competing interests. No easy task and I don’t envy them. But they have been rather covert about how exactly they make those decisions.

What are the criteria used for their emergency power decisions? Reinfection rate? Morality rate? The number of ventilators available? Hospital beds? Protective equipment? Testing available?

It became obvious our leaders were just as confused as everyone else but didn’t want to admit it. So, they never gave clear goals for what would happen when.

“We will lift the stay at home orders when we deem it safe,” is a whole lot different than, “We WILL lift the stay at home order WHEN the reinfection rate is X, or the state has X amount of ventilators and X amount of beds.”

The legislature should mandate that when emergency orders are created, clear, measurable goals for when they will be lifted be included in such orders and that the data is open to the public and press.

The next big crisis will come, so let’s learn from this one.

Jon Caldara is president of the Independence Institute, a free market think tank in Denver.


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