Last week was the first time Republican candidate for the U.S. House Lauren Boebert had to look her employees in the eye and say they wouldn’t be getting paid.
Her restaurant, Shooter’s Grill, in Garfield County was given a cease and desist order Wednesday for offering indoor dine-in options, though the restaurant was following the safety and health guidelines instituted in neighboring Mesa County. Mesa reopened its restaurants to in-house dining earlier than Garfield.
“Sales are down 20%, but I still have 100% of my bills to pay,” Boebert said in a phone interview with The Durango Herald. “It’s important to get my employees paid.”
At first, the statewide shutdown seemed like the right thing to do, Boebert said. But now, the “data doesn’t merit an extended executive order,” Boebert said, and it “shouldn’t be under the governor’s jurisdiction.”
Americans across the country are frustrated and desperate for a source of income, culminating in protests arguing that shutdowns are unconstitutional and a violation of the personal liberties baked into the foundation of the United States.
Are emergency shutdowns unconstitutional?The federal government reported that nearly 3 million more people filed for jobless benefits last week, bringing the total claims to 36.5 million since March. At least 402,000 Coloradans have filed claims for unemployment benefits over the last eight weeks.
Merv Bergal, owner of Durango Hair Co., said he was able to make the salon’s rent with a loan from the Small Business Administration. But he doesn’t know if he can make the next one.
The shutdown measures don’t seem fair, Bergal said. With stations over 6 feet apart, sinks for hand-washing and a sanitation system in place, Durango Hair Co. was “already prepared to do this stuff,” Bergal said.
Putting a Dallas salon owner who was following health and safety guidelines in jail for a week to “make an example out of her” is unjustified, Bergal said.
Denver lawyer Anthony Viorst, who specializes in a range of legal areas, said his practice has received requests from Colorado business owners to challenge the emergency shutdown orders. But he hasn’t accepted any of the cases.
“My professional opinion is the governors are acting within the bounds of their authority,” Viorst said in a phone interview.
The First Amendment gives American citizens the right to assemble, but there are legal restrictions on the time, place and manner in which people congregate when the government aims to protect public health and safety with those laws.
By relying on the national government for protection from invading armies or an invading virus, Americans must temporarily rescind some personal liberties to receive the protection.
There is also a Colorado state statute that authorizes the governor to declare a state of emergency and enact measures like the state shutdown in order to protect the safety and health of the community, he said.
“If someone wants to endanger themselves, they have the right to do that,” Viorst said. “But they are also endangering others, that’s the problem.”
The stay-at-home orders were enacted to prevent the spread of a highly contagious and damaging virus that can travel through respiratory droplets in the air and on surfaces. Both the state and federal governments are balancing their duty to protect American citizens and the personal liberties granted to those citizens in the Constitution, Viorst said.
How far is too farUnder Colorado state law, Gov. Jared Polis has the executive authority to do what he deems necessary to deal with the pandemic, said Robert Peck, an attorney with the Center for Constitutional Litigation in New York.
Even if there is a compelling government interest, however, the governor can take no further measures than he has to to achieve the goal of protecting the lives of Coloradans, Peck said. There has to be sufficient evidence to show that the measures taken didn’t go further than they needed to.
For example, a governor would be abusing executive order powers if he or she were to shut down the state the day before an election that he or she were expected to lose, Peck said.
But when it comes to personal liberties, “almost no right is absolute,” Peck said.
“As the country begins to open, and the number of cases and deaths climbs, people will realize what these measures were for,” Peck said.
Answer not black and whiteBut Richard Collins, a professor of constitutional law at the University of Colorado, Boulder, said the answer is not quite so black and white.
“The situation is much too novel for that,” Collins said. “Who knows what the standard is for this?”
The state and U.S. constitutions have enough at play that the law is more about which judges are interpreting them, not how they are written, Collins said.
“I could write a coherent argument either way,” Collins said.
Different shutdown standards for different parts of the country, or even different parts of the state, create inequalities which could be challenged in court, Collins said.
“There are medical experts trying to tell us what’s reasonably safe,” he said, “and politicians with something to gain one way or another.”
Emily Hayes is a graduate student at American University in Washington, D.C., and an intern for The Durango Herald.