On March 11, 2020, Gov. Jared Polis declared a state of emergency in response to the coronavirus pandemic. The Colorado Department of Public Health and Environment (CDPHE) then stepped in and has since issued over 45 public health orders and amendments. Versions of almost all the original public health orders are still in effect today.
These health orders have impacted our state in unprecedented ways. They closed restaurants, bars, gyms, and any other business they did not consider “essential.” Businesses fortunate enough to remain open were required to social distance and hold limited capacity. The result has been devastating for Colorado jobs and businesses.
In 2019 we had a thriving state economy with one of the lowest unemployment rates in the country. Now we have one of the highest. We have lost numerous businesses and hundreds of thousands of Coloradans have lost their jobs.
The consequences for breaking these orders were severe, entailing anything from fines to jail time. Some businesses, desperate as they struggled to stay afloat, remained open despite the orders — and lost their business licenses as a result.
The usual process for the CDPHE includes a public hearing, where the agency listens to all arguments surrounding the new regulation. The agency must provide a written statement explaining the cause and details of the regulation, as well as publicize any data used in their decision. The agency’s justification is made public, clear, and put under scrutiny — as it should be whenever the government impacts our lives.
Obviously, certain emergencies occur that require immediate action, and we cannot allow bureaucracy to get in the way of ensuring the safety of Coloradans. That’s why state law allows for an exception — limited to 120 days — for those rules that are necessary to protect our immediate health.
Unfortunately, most of these public health orders have been in place for far longer than 120 days. Amendments and executive extensions have kept them going. The process in statute has not been followed for any of them. The CDPHE should have presented their case to the people by now.
Much of this legislative session will be focused on recovering and learning from the mistakes of 2020. A central theme of that effort ought to be remedying this abuse of executive authority. A new provision in statute is necessary to ensure that the CDPHE’s extralegal actions do not become the norm. This addition would make clear that after the 120-day clock expires, the CDPHE must follow the process outlined in 24-4-203 (4) or the regulation will expire.
I introduced a bill to do exactly this, and because my party is in the minority, it was killed in committee. But for the sake of our state, this can’t be the end of the conversation.
A change is needed for several reasons. As of now, while Colorado has reopened in a limited capacity, nothing prevents the CDPHE from returning to total lockdown at any time. The order remains in effect, and a simple amendment could send us back. The power of the state’s executive branch — and specifically, unelected bureaucrats — to invent regulations without the legally required public process, and with unlimited power, undermines the values of representative democracy and the balance of power between the executive and legislative branches. No agency of the executive branch should have this much power without accountability or restraint.
The CDPHE must justify its health orders to the people of Colorado, especially while our state continues to reel from their consequences. It is the responsibility of this legislature to ensure that the executive does not have unrestrained lawmaking power whenever the governor deems it necessary.
Bob Gardner, a Colorado Springs Republican, represents District 12 in the Colorado state Senate.