Legal Corner: New executive orders undermine separation of powers

This summer, Gov. Jared Polis issued executive orders channeling certain state grant funds toward so-called “pro-housing” communities, as determined based on a state agency’s arbitrary view of compliance with several new laws. These orders violate constitutionally mandated separation of powers, notwithstanding the potential value of the policies. The grant programs don't align with the orders and often include contrary eligibility and award standards. Moreover, the laws against which “compliance” is measured do not authorize and even reject this type of executive enforcement. 

Separation of powers

A fundamental principle of government is that the powers of one of the three branches cannot be exercised by another branch, unless specifically allowed by the constitution. COLO. CONST. art. III. This universal American requirement “rests on history's bitter assurance that persons or groups of persons are not to be trusted with unbridled power.” State Auditor v. Jt. Comm. on Legis. Research, 956 S.W.2d 228, 231 (Mo. 1997). 

The executive can’t write laws — only the General Assembly and the people have legislative power. COLO. CONST. art. 5, § 1. This power includes absolute authority to appropriate funds for specific purposes and to define operation limits on other branches of government. Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 519-20 (Colo. 1985). The constitution limits expenditure of funds without legislative approval to prevent use of public funds “at the mere will and caprice” of the executive. Id. 

Once a law is passed, the governor’s role as the executive is to “take care that the laws be faithfully executed.” COLO. CONST. art. 4, § 2. That means the executive branch must administer the laws as written, including administering funds for the purpose for which they were appropriated. In using discretion to administer funds, the executive must act consistently with legislative direction, albeit without close legislative supervision. Anderson v. Lamm, 579 P.2d 620, 623-24 (Colo. 1978). 

The legislature can delegate functions to the executive with key limits. The executive can issue administrative regulations to implement laws but cannot make laws or modify statute. When a proper delegation occurs, the executive must act rationally and consistently and in accordance with statutory requirements (like the Administrative Procedure Act). Agency actions exceeding the scope of the statutory power delegated to it are void. Legislation cannot grant “carte blanche authority to impose sanctions or penalties.” Colo. Anti-Discrimination Comm’n v. Case, 380 P.2d 34, 43 (Colo. 1962).
 

How the orders exceed authority

Executive Order D 2025 011 begins by suggesting a need to “ensure that State funds are spent on local projects that” do certain things that the order wants, whether or not those funds were meant to achieve those things. The order identifies seven recent laws the order deems to be “Strategic Growth Laws” and requires agencies to establish criteria for 34 competitive or discretionary funding opportunities relating to “housing development, land use, transportation, infrastructure, historic preservation, mixed-use incentives, conservation, energy, or climate.” 

But the General Assembly never passed a strategic growth program and never gave the executive room to use its discretion in this way. For most of the grants in question, the General Assembly set objectives and prioritization criteria for the use of state funds. The legislature also specifically established or rejected mechanisms for assessing compliance with these laws. 

The order borrows heavily from policies that the General Assembly rejected. For example, SB23-213 proposed that the executive branch would develop “state strategic growth objectives” against which local compliance and grant opportunities would be assessed. SB 23-213 failed, and the concept of “strategic growth” never made its way into substantive law.

HB24-1313, as introduced, authorized injunctions against communities that did not comply with the law and stripped road funding; the legislature rejected those provisions. Instead, both that law and HB24-1152 limit executive action to approving or rejecting reports on compliance and qualifying communities for the associated grant programs. HB24-1007, HB24-1304, HB25-1273, and SB25-002, delegate no enforcement authority and have no connection to other grant programs. 

The order also seems to overwrite express statutory requirements created by SB24-174. That law provides technical assistance to governments for housing planning and prioritized requests for certain activities. C.R.S. § 24-32-3709. The law also requires the agencies covered by the orders to establish grant prioritization criteria based on compliance with certain laws — none of which include those mentioned in the orders (except for SB24-174). C.R.S. § 24-32-3710. 

These are major policy decisions established by the General Assembly after years of stakeholder engagement. Using executive authority now to resurrect failed bills or to rewrite those laws undermines the legislative process and oversteps the legislature’s policymaking role by adding requirements and redirecting funds. Compounding these issues are the potential for arbitrary action outside of the public rulemaking process when agencies modify grant guidelines and determine whether a particular jurisdiction is “compliant” or not.