The statewide stay-at-home order that is in effect until April 11 would likely survive a legal challenge based on the emergency it is designed to address, former Colorado solicitor general Fred Yarger said on Thursday.
Yarger, speaking on a webinar hosted by Colorado Christian University’s conservative-leaning Centennial Institute, explained that Gov. Jared Polis relied on statutory authority and the Constitution’s delegation of powers to the states in issuing his order, and that courts are reluctant to second-guess restrictions on people’s rights to gather during emergencies.
“We’ve already abridged the rights of people to assemble for religious purposes and clearly we’re abridging the right to gather and speak,” Yarger said. However, in his opinion, “the courts are going to be okay with that for as long as the emergency is real.”
He added that there is not much case law on the subject, given that emergency declarations typically extend to natural disasters like floods and fires instead of pandemics.
In describing the different authorities vested in the state and national governments, Yarger said that only states are empowered to limit travel and impose quarantines throughout their populations. The national government through its enumerated powers can only impose limits on foreign and interstate travel. However, there is an important role that federal officials can play in a pandemic, and that is to marshal resources.
“Folks tend to think that the federal government is extremely powerful in our system, and it is. It’s wealthy. It has a lot of resources to throw around,” he said. “The big thing the federal government can do is spend money.”