Emergency Powers or Dictatorship? You decide.
Emergency and power. Two words which should never again find their way into our legal lexicon. Since March of 2020, Americans have become accustomed to executive orders, whereby one person assumes unilateral power and essentially operates as the executive, legislative and judicial branches of government. Historically, when one person assumes complete power over a populace, the form of government is referred to as a dictatorship or an autocracy. Yet, during COVID-19 unilateral rule was referred to as “emergency power.”
The United States was formed as a Republic. While there is a leader, government is divided into 3 separate and distinct branches which include the executive branch, the legislative branch, and the judicial branch. When courts began to unlawfully interpret the supremacy clause to allow delegation of power by the executive branch, the administrative branch of government was created. The administrative branch operates under the executive branch of government. Most if not all administrative branch officials are not elected. Instead, they are appointed and/or hired. During COVID-19, public health directors at both the state and local municipality levels issued unilateral public health orders of general applicability. These public health orders constituted the greatest infringement of constitutional freedoms and civil rights in peace time history. What if I told you that in Colorado, for example, public health directors do not actually have statutory authority to issue a unilateral public health order of general applicability?
During Labor Day weekend of 2021, I was contacted by the superintendent of a private christian school. The county public health director was threatening to issue public health orders and mask mandates for the students and staff at the school, due to the number of positive COVID-19 tests. At this time there was no longer a public health emergency in CO and there were no public health orders in effect for the county where the school is located. The superintendent wanted to know how a PUBLIC health director can unilaterally force a PRIVATE christian school to adhere to a PUBLIC health order which was in violation of the religious convictions, values and tenants of the school. My response was, “he can’t.” This school elevated God over government and actually lived those religious beliefs.
I requested that the superintendent respond to the public health director and let the director know that he was not allowed on school property and if he or his staff were found on school property, they would be considered trespassing and the police would be called. Within days of this email the director issued a public health order and mask mandate for the school. Keep in mind that at that time no public health orders or mask mandates existed anywhere within the county. Yet, this director determined he had unilateral power to threaten a private christian school and its board of directors with fines and jail time for non-compliance of a bogus public health order. The director went so far as to threaten chaining the doors shut to the school.
We decided that school would allow its students and staff to submit religious accommodation requests for the mask mandate. Over 95% of the school community requested and had their religious accommodation requests granted. When the public health director found out about the religious accommodations, he issued another public health order for the sole purpose of targeting the school’s religious faith. The supplemental public health order stated which circumstances allowed a person to remove their mask. Notably, religion was not on this list. An employee of the public health department also informed the superintendent that “the state of Colorado does not recognize religious exemptions to masking.”
Early on in 2020, District of Colorado Judge Daniel Domenico issued a decision which limited the state of Colorado’s reach into houses of worship. A church had sued the state of Colorado over public health orders which limited the religious freedom of the church. Judge Domenico was clear, “…the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship's religious exercise.” Denver Bible Church v. Azar, 494 F. Supp. 3d 816, 822 (D. Colo. 2020), aff'd in part, dismissed in part sub nom. Church v. Polis, No. 20-1391, 2022 WL 200661 (10th Cir. Jan. 24, 2022)
Yet, in my case, the public health director’s order sought to control the school’s religious exercise. Ultimately, we appealed the public health orders to the county board of health, a necessary step in what is referred to as “administrative exhaustion.” As part of the appeal, we pointed out that per Colorado statutes a public health director does not have any power to issue a public health order absent an emergency. Emergencies must be properly declared as part of Colorado’s Declaration of Emergency Act. There was no emergency in place at the time the director acted. Therefore, the board of health was required to promulgate the order, which it did not. Members of the board actually stated that they had no idea the director had even issued the order.
Many people may be surprised to know that most government officials do not have an in depth understanding of their statutory powers and duties. This board of health was no exception. Instead of determining that their director had acted ultra vires and was unlawfully assuming powers he did not possess, the majority of the board decided to cheerlead for their director.
The school decided to file a lawsuit and seek judicial review of the board’s actions. I fought alongside the school for over 2 years. However, in the end the school’s battle was terminated by courts which were too cowardly to address our arguments. Instead of adhering to their constitutional oaths of office, the judges found ways to dismiss the case without addressing the merits of our arguments. It is similar to when someone asks you if they have gained weight. Most people will not say yes, even if that is the correct response. They will find a way around a direct answer. Had a court determined that absent a declared public health emergency public health directors are unable to issue public health orders of general applicability, there would have been shock, anger, retribution and many other feelings and actions. Judicial warfare is nothing new. COVID-19 simply highlighted this concept for the populace.
I could write novels about the unconstitutional actions I have witnessed from various agencies and officials in the administrative branch. I will not stop until the administrative branch of government is gone. The U.S. Constitution created three branches of government. Not four. Unelected officials have no place restricting and terminating constitutional rights of the populace.