{"id":50302,"date":"2020-11-21T00:51:40","date_gmt":"2020-11-21T07:51:40","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/can-the-constitution-and-covid-restrictions-coexist\/"},"modified":"2026-03-31T03:50:54","modified_gmt":"2026-03-31T09:50:54","slug":"can-the-constitution-and-covid-restrictions-coexist","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/can-the-constitution-and-covid-restrictions-coexist\/","title":{"rendered":"Can the Constitution and COVID restrictions coexist?"},"content":{"rendered":"\n

\"Wisniewski\"
Wisniewski<\/span>du1-i-syn<\/span><\/figcaption><\/figure>\n<\/p>

COVID-19 restrictions have lasted so long and have narrowed the right to gather to such an extent that some legal scholars say some measures taken to limit transmission of the virus are impinging on constitutionally protected civil liberties.<\/p>\n

\u201cWhen states are completely prohibiting individuals from exercising their religion, based on the tenets of those religions, as well as exercising their right to purchase, keep and bear arms, as well as completely prohibiting their ability to assemble as they see fit, these are situations when everybody\u2019s senses and concerns should be heightened,\u201d said Cody Wisniewski, an attorney with the Mountain States Legal Foundation, a nonprofit public-interest law firm focused on protecting property rights and economic rights.<\/p>\n

The Level Red restriction banning in-person social gatherings with any person from outside the household is especially problematic, Wisniewski said.<\/p>\n

Especially during the holidays, he said, extended family members from multiple households often gather in a single house for religious purposes, and any ban on such gatherings is on shaky legal footing.<\/p>\n

\"Wisniewski\"
Wisniewski<\/span>du1-i-syn<\/span><\/figcaption><\/figure>\n<\/p>

\u201cIf you\u2019re telling people they can\u2019t gather in their own home with other individuals or get together for the holidays, especially for religious reasons, I think those restrictions are incredibly problematic,\u201d he said. \u201cSetting aside religion, even the idea that a county can tell you that you can\u2019t have a family member over from a different household for Thanksgiving dinner, is problematic.\u201d<\/p>\n

Colorado Gov. Jared Polis\u2019 office did not immediately respond Friday to requests for comment.<\/p>\n

Dan Burrows, legal director of the Public Trust Institute, a Colorado nonprofit created to defend individual freedoms based on the state\u2019s Constitution, said what bothers him is that public health orders have been assembled so quickly and with such haste they have not examined in any robust way if the limits impinge on the Constitution.<\/p>\n

\u201cOur public officials take an oath to support and defend the Constitution,\u201d he said. \u201cAnd it seems like they have just decided to do whatever they want and then let the courts sort it out. And that\u2019s a violation of their oath as officeholders to support and defend the Constitution, and that, to me, is dishonorable, frankly.\u201d<\/p>\n

The peril from COVID-19, now entering its ninth month in the United States, has lasted so long that Burrows said the time has come for legislative bodies to establish laws for dealing with outbreak.<\/p>\n

He praised the state of Kansas, which has adopted a law that emergency executive orders from a governor can last for only 45 days unless the Legislature passes a resolution allowing them to continue.<\/p>\n

\u201cWhat really bothers me is that we have no legislative involvement,\u201d he said.<\/p>\n

In Colorado, the Legislature has yet to deal with passing laws to address the COVID-19 pandemic. In the counties, health departments, rather than county commissions, have taken the lead in setting restrictions, and that is problematic for Burrows.<\/p>\n

\u201cWhat bothers me more than anything,\u201d he said, \u201cis that we have unelected bureaucrats at county departments of health making these decisions, rather than the people that we\u2019ve actually elected \u2013 the people that if they\u2019re making decisions we don\u2019t like or are unconstitutional, we can vote them out. You can\u2019t vote out a county health director.\u201d<\/p>\n

Burrows said it is within the established powers of the executive branch to make emergency orders when crises emerge, like the COVID-19 pandemic, but emergency powers should be temporary with legislatures acting to establish the laws for dealing situations that become permanent features of life.<\/p>\n

\u201cGov. Polis is just being human in using the powers he\u2019s been given,\u201d Burrows said. \u201cThe people who have really abandoned their responsibility is the Legislature, which has ceded these powers to him. He\u2019s only exercising powers that the Legislature has already voted and agreed to give him, which is not what people assumed would happen when they were talking about separation of powers.<\/p>\n

Wisniewski concurred that the length of time COVID-19 emergency restrictions have been in place is becoming increasingly open to legal questions.<\/p>\n

\u201cThe idea about emergency orders is that it\u2019s an emergency and they end,\u201d he said.<\/p>\n

Polis recently called the Legislature into a special session to discuss economic relief measures to help Coloradans weather the COVID-19 storm, but Wisniewski said the special session should also address the emergency restrictions \u2013 giving legislative backing to any restrictions required to battle the novel coronavirus going forward.<\/p>\n

\u201cIf the Colorado General Assembly can convene, then it\u2019s no longer appropriate for a governor to be issuing an executive order or an emergency order,\u201d he said. \u201c\u2026 You cannot say it\u2019s an emergency any longer when you\u2019ve got the Legislature meeting and discussing legislation. They should be representing the individuals who elected them, and they should be discussing the entirety of the COVID response, not just economic relief.\u201d<\/p>\n

parmijo@durangoherald.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

gatherings, longevity of restrictions increasingly weigh on civil liberties<\/p>\n","protected":false},"author":1,"featured_media":50303,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[1615,685,971,28,107],"naviga_topic":[],"class_list":["post-50302","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-constitution","tag-coronavirus-covid-19","tag-emergency-planning","tag-headlines","tag-laws"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/50302","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=50302"}],"version-history":[{"count":1,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/50302\/revisions"}],"predecessor-version":[{"id":87722,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/50302\/revisions\/87722"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/50303"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=50302"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=50302"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=50302"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=50302"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}