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Explaining the power of an executive order

Legal impacts of the statewide mask mandate
Explaining the power of an executive order
Posted at 12:48 AM, Jul 18, 2020

SOUTHERN COLORADO — News5 took a closer look at the new statewide executive order mandating masks in public places, in respect to how the rule would play out legally.

Mayor John Suthers, who has previously served as Colorado's Attorney General, explained that by definition in the statutes an executive order has the force of law. "A executive order that directs something in regard to a health situation has the force of law. So yes, it is a law... You ought to do it, regardless of whether or not it's the law or not. We're in a very critical period right now," said Suthers.

The mayor said the executive order would be enforced when businesses need it to be. "The merchant says, you can't come in without a mask, and the person comes in without the mask, that person is trespassing and it will hold up in court," said Suthers.

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He also said the Colorado Constitution vests the supreme executive authority in the governor of the state. "What we have here is the health department advising the governor that a mask mandate may be beneficial to the public health, safety, and welfare, in dealing with a disease, and the governor has issued that executive order... There's no contrary directives from the state legislature that you would have an issue of separation of power," said Suthers.

Mayor Suthers said health departments have the power to close businesses for health reasons, which could happen if it is discovered that one is not enforcing the new mandate.

Businesses across the state are doing their best to ensure customers are wearing masks in their establishments. "We're trying real hard to control whatever we can here... The new mask order has customers wearing masks, which is a little more difficult than me telling the staff they have to wear masks, but for the most part, people are pretty good about it," said Jeff Hulsmann, the owner of O'Malley's Steak Pub in Palmer Lake.

Mayor Suthers also said if the executive order went to court, there would be a presumption that it was constitutional, and whoever challenges it would have a heavy burden of showing it is not lawful. Based on the case law he's seen, he feels confident the courts would uphold the governor's order.