Beginning on April 30, after Colorado’s case rate and hospitalization rate had begun to decline, Gov. Jared Polis has issued a series of executive orders consolidating state power in his office, and threatening to upend orderly constitutional governance. This is not a partisan concern – it should rightly worry all Coloradans who understand our system of checks and balances.
First, he forbade evictions for non-payment of rent, despite previously having said he lacked such power. Then, he announced the suspension of election laws relating to signature-gathering for initiatives. And most recently (one fears to say, finally), Gov. Polis unilaterally allocated $1.6 billion of federal CARES Act money.
These actions comprise an escalating power grab by the governor, in violation of key principles of American government, and should and must be resisted by all legal means.
We must first understand where the governor’s power in this matter derives. His power to declare and end an emergency comes from C.R.S. § 24-33.5-704. According to Section 7(a), he may “Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency, if strict compliance… would in any way prevent, hinder, or delay necessary action in coping with the emergency.” The state’s ability to shutter businesses derives from its police power, long recognized to include epidemic response.
Polis deserves the benefit of the doubt for his actions at the very beginning of the pandemic. In the absence of clear data, an abundance of caution was in order to make sure that our health system did not become overwhelmed with cases, as had happened in Italy, for example.
However, what might not have been apparent on April 30 is abundantly clear now – Colorado’s rates of infection and hospitalization have been declining for weeks, and never came close to overwhelming our hospitals. There is simply no public health emergency anymore; the only emergency here is the economic one created and perpetuated by the governor’s shut-down orders.
With each move, Governor Polis moved onto shakier ground, and with each move, he seized more substantive power.
Both the U.S. and Colorado constitutions have clauses preventing the impairment of contracts. During the Depression, Minnesota passed a law temporarily forbidding evictions. The courts upheld that as a valid and temporary exercise of the state’s police power. But it was a law passed by the legislature, not an executive action, and the government of Minnesota didn’t cause the economic distress it sought to alleviate.
In his announcement suspending the laws concerning petition-gathering, the governor claimed to have spoken “to all the stakeholders,” by which he meant county clerks and the secretary of state. But these initiatives will appear on the statewide ballot; the relevant stakeholders aren’t the officials charged with administering elections, they’re all Coloradans.
Additionally, it’s hard to see how language intended to allow state agencies to participate in containing an epidemic gives permission to the governor to simply rewrite black-letter statute as he sees fit. There’s no limiting principle here. In theory, Polis could claim power to rewrite any law that affected state business.
His comment that he unilaterally overturned election law in order to preserve democracy should read like a bitter joke rather than a serious defense. Fortunately, at least two organizations are choosing to treat it that way and have filed suit to stop this particular executive decree.
Finally, and most worrisome, was his usurpation of the authority to allocate state funds, a core legislative prerogative. The money involved is far from trivial: $1.6 billion comes to roughly one-third to one-half the expected shortfall over the next few years, a shortfall – it must be reiterated – that is a result of the governor’s own restrictions on the state’s civic and commercial life.
Even if the state legislature would have allocated that money in exactly the same way, those serving in that institution have a sworn responsibility to defend its powers against executive encroachment. If the governor were to reallocate budgeted money to his liking, the legislature would file suit to stop him. They should do no less in this case.
Fortunately, the same law that gives the governor the power to declare a state of emergency also gives the legislature the power to end it. It should do so.
Gubernatorial emergency powers are intended to help mobilize state resources to deal with the emergency, not to enable one-man rule. It is the job of individuals, county clerks, and legislators to push back against this power grab.
Joshua Sharf is the 1st vice chairman of the Denver County Republicans