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Life and Liberty: The Constitutionality of Government Responses to COVID-19

On March 25 Colorado Governor Jared Polis issued an executive order requiring residents to stay at home with narrow exceptions—the goal of which is to mitigate the spread of COVID-19. The following day, the United States reported it had the most confirmed cases of the virus in the world. Faced with the decision of how to contain the spread of the virus, increasing numbers of city and state governments are invoking executive power to limit travel and keep people from coming in contact with one another and shut down private businesses. These broad, restrictive measures beg the questions of whether elected officials have the authority to lock up major portions of the population in their homes and whether law enforcement can be used to enforce these orders against the population they are sown to protect.

Governor Polis’s original executive order cites two authorities: (1) Article IV, Section 2 of the Colorado Constitution, which vests supreme executive power in the governor of the state; and (2) the Colorado Disaster Emergency Act, which governs the state’s ability to prepare for and respond to catastrophe, including a pandemic. States and local officials have more expansive abilities than the federal government in states of emergency since they are constitutionally granted “police powers” to maintain the health, safety, and welfare of the public. However, the extreme restriction on individual rights and aggressive enforcement of the policies encroach on protections granted by the U.S. Constitution. While state law clearly gives the governor the ability to issue executive orders that hold the force of law in a disaster scenario, U.S. Constitution remains the supreme law of the land, and certain individual rights granted by the Constitution cannot be infringed upon unless the government has a compelling interest and the action is the least restrictive method of accomplishing that government interest. This level of review is known as “strict scrutiny” and is a notoriously difficult test for laws to satisfy.

Similar to the “stay at home” orders previously issued in California and in the City of Denver, the Colorado order requires people to stay at home whenever possible, prohibits gatherings outside of a residence, prohibits unnecessary travel, and lists which critical businesses may continue to operate, among other precautions. These restrictions have the potential to violate well established constitutional rights such as the right to travel, the right to assemble, and the right to association. Assuming that stopping the spread of a pandemic and protecting the health and safety of the people is a compelling government interest, the order’s constitutionality would be determined by whether it is infringing on rights in the least restrictive way possible. The state would be hard pressed in justifying certain aspects of the order as the least restrictive means of accomplishing the government’s goal.

It’s difficult to predict what the United States Supreme Court would hold. The government could argue that controlling social interaction is the only means to truly accomplish the end goal of mitigating the effects of the virus. On the other hand, there is an argument that the same could be accomplished by merely requiring social distancing, and not a “stay at home” order. Thus, this order is clearly overbroad – a ground to challenge the constitutionality of a government action.

By way of comparison, in 2018 67,367 drug overdose deaths were reported in the United States and an estimated 38,000 people lost their lives to car crashes. It is anticipated that 1,762,450 new cancer cases and 606,880 deaths from cancer occurred in 2019. However, 101,321 coronavirus cases and 1,567 deaths have been reported in the U.S. Far more deathly public crises have been occurring for years and the government has ceased to have an interest in locking people up in their homes or shutting down private businesses in order to mitigate the devastating effects of various other conditions. While it is true that the constitutionality cannot be determined until it is challenged and the Supreme Court rules, what is also true is that we are all giving up constitutional rights we will never get back again. This occurred when the PATRIOT Act was passed, and we never received those privacy rights back after terrorist threats diminished. In summary, the death toll and the health crisis do not warrant a citizen lock up enforceable by criminal punishment.

Even though the order is considered law, its enforcement may be at the discretion of local law enforcement. Colorado’s “stay at home” order allows local authorities to “determine the best course of action to encourage maximum compliance.” Punishment for failure to comply can result in a fine of up to one thousand dollars and imprisonment in county jail for up to one year.  But whether elected sheriffs will enforce the law remains to be seen. Colorado sheriffs declining to enforce certain laws they find unconstitutional is not unprecedented. When the state banned the sale of magazines that hold more than ten rounds of ammunition, Sheriffs generally regarded the law as a low priority. Only twelve cases resulted in a sentence for possessing a magazine holding more than ten rounds. Some sheriffs in Colorado have also indicated that they do not intend to enforce the state’s new “red flag” law, which would allow a judge to order the seizure of weapons. Several sheriffs have declared their jurisdictions “sanctuary counties” where the law will not be enforced. There is also precedent in other states that have issued similar orders. California police departments have assured citizens that they do not intend to enforce their “stay at home” order, which carries similar punishments to those in Colorado.

It may be natural to want to analyze the “stay at home” executive order through the lens of constitutional law, perhaps to preserve the integrity of our legal system or to prevent dangerous precedents from being set. However, to look at the executive order in purely constitutional terms is to miss the point of why it was enacted in the first place. COVID-19 is impacting society in unprecedented ways, and it is acting quickly. The goal of the “stay at home” orders are not to infringe on individual liberties; the goal is to mitigate the devastating effects the virus is having on society as a whole.

Enforcement issues aside, it is ultimately up to individuals to achieve the order’s purpose of slowing the spread of COVID-19. The Legal-Dictionary defines a public contract as “an agreement to perform a particular task to benefit the community at large that is financed by government funds.” Although the executive orders do not neatly fit this definition, the concept is parallel. If we do our part and refrain from socializing and leaving our homes, then the government is better situated to repair the damages the virus has created.

This author’s take is that the provisions of the “stay at home” orders should be followed as a matter of being a good citizen and not because the Constitution requires it.   Just like the Village of Eyam did in 1665 during the height of the Black Death or Alfred Vanderbilt did on the morning of May 7 in 1915 when he gave up his lifeboat seat on the doomed Lusitania we all owe it to each other to put others first.  “Greater love hath no man than this: to lay down one’s life for his friends.” – the Bible.

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