SJC got Baker emergency orders case right

Pandemic easily meets standard of 1950 law

THERE ARE AT least two important takeaways from the Massachusetts Supreme Judicial Court’s decision in Desrosiers v. Governor, in which the court upheld Gov. Charlie Baker’s authority to issue emergency orders in response to the COVID-19 pandemic.

First, the court’s conclusion was undoubtedly correct. The plaintiffs argued that the governor had “usurped” the role of the Legislature and violated the state constitution’s commitment to separation of powers, as well as the plaintiffs’ rights to due process and free assembly. At bottom, the plaintiffs maintained that the governor lacked the authority to issue emergency orders under the Civil Defense Act. That law, enacted in 1950, gave the governor the power to issue emergency orders in the event of, among other things, “fire, flood, earthquake or other natural causes.”

The SJC had little trouble concluding that the phrase “other natural causes” includes a pandemic caused by a disease that has claimed the lives of tens of thousands of people—a disease that is highly infectious, for which there is no known cure, and that has threatened to overwhelm the Commonwealth’s health care capacity. The court made clear, moreover, that the Act would not apply to every public health emergency, just those, like the present one, “that exceed the resources and capacities of local governments and boards of health.”

The court made similarly short work of the argument that the governor’s orders violate separation of powers principles. As the court has long held, a constitutional problem arises only when one branch of government seeks to interfere with another’s functions. That is not the case here, where the Legislature has expressly granted the governor the power to issue emergency orders through the Civil Defense Act. Of course, the Legislature remains free at any time to modify or even rescind that authority.

The second important takeaway from Desrosiers is the SJC’s commitment to the principle of judicial deference in the face of a genuine public emergency. The court recognized that judges should not be second guessing the decisions of elected officials whose competence and expertise likely exceeds theirs, and who are politically accountable for their decisions in a way that unelected judges are not.

This approach acknowledges the institutional limitations of the judiciary. While courts play a critical role in ensuring the protection of individual constitutional rights, like due process, the free exercise of religion, and free expression, there are instances in which they must defer to those officials who are better positioned to address the intricacies of a public emergency. Such deference is not evidence that judges have shunned their role in our constitutional democracy—rather, it is evidence of their respect for the boundaries of that role when, quite literally, lives are on the line.

The SJC’s approach in Desrosiers stands in contrast to recent moves by a majority of the US Supreme Court. For example, in an opinion concurring in a decision overturning enforcement of New York’s COVID restrictions to religious gatherings, Justice Neil Gorsuch suggested that, “while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.” Actually, there is such a world, and we currently live in it.

Measures necessary to stem the spread of a highly contagious and potentially lethal disease may require fine distinctions, and government officials are in the best position to make them. As the SJC put it in Desrosiers, when government officials “undertake to act in areas fraught with medical and scientific uncertainties,” they should be given “especially broad” latitude.

Desrosiers vindicates the model of government envisioned by the architect of the Massachusetts Constitution, John Adams. Article 30 of the Constitution famously embraces the principle that the Commonwealth’s government should be one “of laws and not of men.” The decision recognizes that the Legislature has permitted the governor to take appropriate action in response to a public health emergency, and that those actions are entitled to deference by the judiciary. It serves to remind the Commonwealth’s citizens, moreover, that the ultimate check on governmental authority lies with the people themselves. If the people are unhappy with the governor’s pandemic restrictions, or with the Legislature’s oversight of the governor, Desrosiers makes clear who they should hold responsible.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the co-author of The Massachusetts State Constitution, published by Oxford University Press