“All politics is local,” implored former Democratic Speaker of the House Tip O’Neill.
Town leaders in Monument, a bedroom community for Denver and Colorado Springs, don’t want to lose businesses to the state’s on-again-off-again COVID-19 shutdowns. In Monument, when a business owner struggles or goes under it means a friend and neighbor in peril.
“The person we see at the grocery store is the person we see two tables down at the restaurant, in church, or at Walmart,” said Mayor Don Wilson. “A law that causes social separation in Denver or LA does not work in a town like this.”
The Board of Trustees Monday night will consider saying “enough” to any future business killing COVID regulations.
Trustee Ron Stephens, the husband of former Republican Colorado House Minority Leader Amy Stephens, suggested in December the board declare “sanctuary city” status to offer protections from state COVID business regulations. No one dissented.
Wilson’s only hesitation regards state retaliation against businesses the town government tries to protect. At best, the sanctuary policy may prevent town police and other city employees from enforcing COVID mandates. Even with that, the town would loudly and clearly state an affinity for small business.
If Monument goes through with a policy of any kind, the move could become a model for other municipalities and counties to study and consider. State and federal authorities often threaten local policies formed by community mores and the locals elected to govern.
President-elect Joe Biden says he may impose a federal mask mandate. Colorado enacted a state standard for school sex education. Democratic President Barack Obama proposed controlling local zoning to promote racial and ethnic diversity. Republican President Donald Trump proposed cracking down on zoning that obstructs “affordable housing.” Oil and gas defenders oppose a state law that allows local governments to restrict energy production.
At the heart of intergovernmental conflicts are the 10th and 14th Amendments. The 10th says the federal government has no authority unless granted by the Constitution. It says states have no authority where it is constrained by the Constitution. Anything not covered by those tenets belongs “to the states respectively, or to the people.”
The 14th extends to state and local governments all restrictions on regulation of individual activities protected by the Constitution — think property rights, gun rights, and the freedoms of religion and speech. It means cities, towns, counties and states have limited authority to infringe on individual freedom. We ratified the law in 1868 mostly to prevent states from protecting slave owners. The individual almost always reigns supreme over any form government.
In general, though defined by a complex body of precedent, local governments are on solid ground to uphold constitutional protections of individuals.
Monument trustees acted on this principle in 2019 by declaring the town a “sanctuary city” that protects gun owners from Colorado’s Red Flag law, a statute ostensibly allowing authorities to confiscate guns from those considered risks to themselves or others.
Denver and other large cities rely on the 10th and 14th Amendments when declaring “sanctuary” status to protect undocumented immigrants from federal authority. The Constitution neglects to clearly authorize federal enforcement of immigration in non-federal jurisdictions.
Colorado and other states relied on the 10th and 14th Amendments when legalizing marijuana, knowing the Constitution does not specifically grant federal authority over recreational drugs. The 2005 Interstate Commerce Clause ruling in Gonzales v. Raich says authorities may enforce federal drug laws, but the Justice Department has declined and lacks adequate resources to do so.
COVID closures and oil and gas restrictions fall into gray areas of the law. Neither is specified in the Constitution, though each relies on property rights clearly protected by the Fifth Amendment’s Due Process clause as extended to all other governments by the 14th. The US Supreme Court ruled in December against Colorado’s capacity restrictions on churches, but questions remain about the legality of limits on secular gatherings in, say, restaurants and bars.
Just as the Constitution should protect owners of mineral rights to extract their property, it should defend business owners against dictates that take the value of their commercial properties without due process. Whether allowed by the courts or not, executive shutdown orders obstruct property rights and jeopardize livelihoods without due process. They seem to flout the First Amendment’s restriction on government authority to restrain peaceable assembly.
When “local control” defies state and federal governments, the judiciary should ask this: Are local authorities defending or offending constitutionally protected individual rights? They have jurisdiction to defend, but never to violate, the Constitution.
By offering businesses protections from jobs-killing state and federal regulations, local officials would uphold the Fifth and 14th Amendments. They would govern to protect rights of greater importance than extreme measures of safety, especially those of marginal efficacy. Courts would determine whether they would prevail, and if so to what extent.
A left-wing faction of the Democratic Party views the Constitution as an impediment to the radical agenda of communal property ownership, socialistic redistribution of wealth, and despotic regulations in the name of climate change and safety.
More than ever, local control may be our shield against assaults from on high against basic liberty. Time will tell how well it works.