The United States begins 2021 under a continuing state of emergency. Rather, it begins the new year under fifty-one different states of emergency, one for each state plus the District of Columbia.
In Colorado this has resulted in conflicting, inconsistent, and arbitrary rules. Businesses are punished not for bad outcomes but for daring to defy the rules. Having suspended the liquor licenses of a number of restaurants for daring to remain open, the Colorado Department of Revenue’s Liquor Enforcement Division sent a letter to those restaurants’ suppliers, “strongly encouraging” them not to do business with the miscreants. Never mind that restaurants as a whole have been the scene of few outbreaks. A national chain that has been associated with some outbreaks remains open for business.
State constitutions grant their chief executives the power to declare states of emergency, and to assume special powers to meet that emergency. Many of those state constitutions limit the scope or duration of those powers; Colorado’s constitution does not. If the governor chooses not to end the state of emergency, the legislature must pass a joint resolution ending it.
Governor Polis, who has a detailed set of criteria for moving between Covid color levels with their attendant restrictions, has issued no objective criteria for ending the state of emergency and relinquishing his extraordinary powers. A supine press, bogged down in details it barely pretends to understand, has not pressed him on this.
All of this so far has been defended as an attempt to save lives, and indeed there is a direct relationship between a viral pandemic and public health. But what if a governor were to unilaterally declare a pet political program a “public health emergency?”
Unfortunately, this isn’t as far-fetched as it might sound. The Denver City Council, Jefferson County’s Board of Heath, and the Colorado Department of Public Health and Environment (CDPHE) have all declared racism to be a public health crisis. Not that racism might exacerbate a public health crisis, mind you, but that racism itself is a public health crisis.
That’s not the only example. The Centers for Disease Control has declared gun violence to be a “serious public health problem in the United States,” and the Washington Post recently published an official unsigned editorial calling for the District of Columbia to deal with gun violence as a public health emergency. Having been through nearly a year of a public health emergency, it’s fair to assume that the paper’s editorial writers knew exactly what they were inviting.
It gets even more abstract. The Boston City Council recently declared climate change a public health emergency. In 2019, the American Public Health Association published a call by a number of leading public health and activist groups doing the same. It’s easy to dismiss Health Care Without Harm as agenda-driven, but the American Lung Association, the American Academy of Pediatrics, and the American College of Physicians carry weight with the public.
We might well ask what happens when some governor or consortium of governors takes this importuning seriously and declares a state of emergency based on systemic racism or on climate change? In theory, a governor would be free to use his emergency powers to implement any measures he liked bearing on, say, the greenhouse gas emissions of his state. One could see the governors of the Western States Pact trying to pull something like this.
Thus far, Colorado’s legislature has declined to act, leaving Governor Polis and various city and county executives and health departments to continue to govern by fiat. Republican bills designed to limit Polis’s power in time or scope were killed on party-line votes in the recent special legislative session.
The courts might be used, but they are at best an imprecise instrument. With the exception of Michigan’s Supreme Court, courts have been unwilling to reject governor’s overall emergency powers, leaving litigants to take on the government one regulation at a time. And the reaction to Supreme Court Justice Samuel Alito’s statement in a speech to the Federalist Society that Covid restrictions pose “previously unimaginable restrictions on individual liberty,” mostly from left-of-center sources, bodes ill for resistance to such notional measures.
Those activists looking for a potentially winning cause would do well to consider a ballot initiative patterned on one of the Republican bills in the special session, limiting the initial state of emergency to 30 days, requiring the state legislature’s approval to extend it in 60-day increments.
Thus far, such an emergency declaration mercifully remains in the realm of the theoretical. But we have already seen nearly a year’s worth of public health emergency with little public resistance. The temptation to achieve through fiat what can’t be achieved through elections will surely grow. Citizens should move to make sure it doesn’t happen.
Joshua Sharf is a regular contributor to Complete Colorado.
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