The Colorado state legislature is back in session this week, albeit in a rather surreal manner, mostly cleaning up the remnants of the interrupted regular session, carving out a budget with a $3 billion-and-then-some hole to contend with, and introducing a handful of other bills in one way or another connected with the pandemic. I would expect that the legislature will be dealing with the fallout to some extent for the next several years. One thing that should be on the agenda in the foreseeable future is an examination of the executive branch’s emergency powers.

I have said before, and will reiterate, that I firmly believe Gov. Polis invoked his emergency powers in good faith and out of necessity. I also believe that it is clear that either a) he has exceeded them at times, or b) that the laws extending him his emergency authority grant too much leeway.

This opens up a very old debate, one that stretches back far beyond the heady days of the American founding. The system we have been vouchsafed provides, wisely, for a separation of powers so that lawmaking is not concentrated in the hands of the executive. This has prevented much of the mischief and tragedy seen elsewhere around the world throughout history.

Yes, but on the other hand the need for strong executive action during an emergency has been just as self-evident. Usually these have been short-lived – i.e., during natural disasters where immediate relief and restoration of order is needed for a week or two – or fairly specific in their direction; national security crises, for instance, which demand executive decisions of a military nature. And few, I wager, would seriously question the need for the executive to execute plans and protocols quickly in the face of an emergency like a pandemic.

The question is – has always been – how to reconcile these two non-exclusive alternatives. The extent of these emergency powers has never been tested (like much of the rest of our collective pandemic response for that matter), and it is therefore proper that they now face adjustments, or even major surgery, where required.

There are problems inherent with over-extension, even deeper than the surface ones related to the restriction of civil liberties which are getting all the attention at the moment. One of the more astringent issues is that which could ultimately arise from mass non-compliance. The problem was illustrated quite ably by University of Pennsylvania Law Professor Paul Robinson in an op-ed published in the Wall Street Journal earlier in the month, in which he makes the allegorical reference to Prohibition. The 18th Amendment failed, in large part, because it was mostly ignored. But as Robinson points out, that bit of civil disobedience led to an increasing comfort with defiance of the law – not just laws against drinking, but other “real” laws, if you will, as well.

It’s simply human nature – once you break a rule the first time, the second time is easier. Do you recall the first time you skipped class? And how it felt like you were simultaneously breaking every one of the Ten Commandments? The second or third time were much easier. And then, perhaps, you move on to trying a cigarette on one of your illicit outings (not my angelic self, of course.) And on it may easily go. That is part of the fear associated with having laws that are unsustainable and which invite mass defiance.

This is also precisely the problem with vast application of broad emergency powers. Government is comprised of fallible humans guided by the same human nature as the rest of us, after all. Once broad executive power is, however reluctantly, invoked once, the risk arises that the next time will be easier. Measures that were unthinkable two months ago are now thinkable.

Reductionist thinking, fueled by social media, allows polarized imaginations to run wild, so that some on the right fear a future Democratic administration may, in the name of a climate emergency, imprison and kill anyone with disposable income and permit abortion up to five years old; while some on the left may fear a future Republican administration could, in the name of national security, prohibit dancing, hang homosexuals, and give every CEO in the state a machine gun. The reality will be less melodramatic, which is not to say that future excesses will not be injurious to the fabric of society. Reviewing the emergency power statutes, and installing necessary guiderails, makes abundant sense, and makes for good government.

Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.