Robbins: Police powers in the time of COVID-19
Last Thursday, Eagle County Public Health issued a public health order imposing restrictions on social gatherings. At least until April 8, gatherings of 50 people or more will be verboten.
This is just our local flavor of similar edicts sweeping our nation like (dare I say it?) an epidemic. In towns and cities large and small, gatherings and other social intercourse — sporting events, theater, travel, weddings, and more — are being given the kibosh owing to the pernicious novel coronavirus.
I do not mean to make light of it; this is deadly serious stuff.
In issuing its diktat, county officials cited Section 25-1-515 of the Colorado Revised Statutes. We’ll take a peek at that in just a sec. Before we get there though, you may be wondering how can they do that? How can the county, with a wave of its judicial wand, dictate how big a hoopla I can have?
The answer lies in the police powers of the “state.”
“Police powers” may be defined as the inherent power of the government to exercise reasonable control over persons and property within its jurisdiction in the interest of the general security, health, safety, morals, and welfare except — and unless — legally prohibited. In constitutional law, police power encompasses the capacity of the states (and their sub jurisdictions — cites, towns, villages, etc.) to regulate behavior and enforce order in the interests of the health, safety and general welfare of those within their borders.
Police power is exercised by the legislative and executive branches of the various states through the enactment and enforcement of laws and orders. States have the power to compel obedience to these laws through whatever measures they see fit, provided these measures do not infringe upon any of the rights protected by the United States Constitution or their own state constitutions and are not unreasonably arbitrary or oppressive. Methods of enforcement can include legal sanctions, physical means, and other forms of coercion and inducement.
It is worth at least a quick aside to note that under the 10th Amendment to the United States Constitution, those powers not expressly delegated to the federal government are reserved to the states or to the people. What this implies is that the feds do not possess all possible powers; most such powers are reserved to the state governments and their various divisions. Others are reserved to the people.
The Eagle County order provides — among other things and all in bold — that “FAILURE TO COMPLY WITH THIS ORDER IS SUBJECT TO THE PENALTIES CONTAINED IN SECTIONS 25-1-516 18-1.3-501, COLORADO REVISED STATUTES, INCLUDING A FINE UP TO UP TO FIVE THOUSAND (5,000) DOLLARS AND IMPRISONMENT IN THE COUNTY JAIL FOR UP TO EIGHTEEN MONTHS.”
In the immortal words of Snoop Dogg, this appears to be some serious “shizzle.” And indeed it is. As of this writing, Happy Valley leads the state in reported COVID-19 cases, a distinction I am sure we all wish were not the case. I am sure the “like nowhere on earth” marketing slogan was never intended to mean this.
Let’s now peek beneath the curtain; what exactly does the statute upon which the Eagle County order is based have to say?
First, the statute is under Title 25 which pertains to Public Health and Environment. Article 1 of the statue deals with “Administration.” Part 5 deals with “Public Health” and Subpart 3 deals with “County or District Public Health Agencies.” The specific section is entitled “County or district boards of public health — public health directors.” The first four sections deal with constituting county health agencies. It is in section 5 where the rubber of this crisis meets the road.
That subsection provides, among other things, that the County or District Board of Health shall “develop and promote the public policies needed to secure the conditions necessary for a healthy community,” “to determine general policies to be followed by the public health director in administering and enforcing public health laws, orders, and rules of the county or district board, and orders, rules, and standards of the state board,” and “to issue orders and adopt rules not inconsistent with the public health laws of this state … as the county or district board may deem necessary for the exercise of [its] powers and duties…”
While all of this may seem draconian (and one can at least keep fingers crossed that it will all turn out to be wildly overblown), what is certain is that these are uncharted, sad, and dangerous times. A quick read of the Center for Disease Control and Prevention modeling studies for this illness and its potential toll — absent the sort of intervention the county has indulged in — is sure to give you chills.
Until this all sorts out, keep your head down and your chin up.
This too, eventually, shall pass.