SJC upholds Baker’s sweeping COVID-19 authority

Ruling traces governor’s powers to 1950 Civil Defense Act

THE SUPREME JUDICIAL COURT strongly affirmed that Gov. Charlie Baker’s March 10 declaration of a COVID-19 emergency and his long list of subsequent orders shutting down and opening up parts of the state economy were a proper exercise of his authority under the 1950 Civil Defense Act.

The unanimous decision, written by Justice Elspeth Cypher, examined and dismissed various legal arguments suggesting Baker had exceeded his authority, but there was an undercurrent throughout the opinion of respect for the governor’s actions.

“The emergency orders as a whole were informed by public health recommendations and serve the state interest of stopping the spread of COVID-19, which is a legitimate state interest,” the court wrote.

Cypher, during oral arguments on the case on September 11, reflected the court’s concern about undermining the governor’s legal authority during a time of crisis. “Don’t you have to admit that Gov. Baker has done a pretty darn good job here, especially when you compare him to other states?” she asked.

The plaintiffs in the case, a group of business people, pastors, and others who felt their rights had been abridged by economy-wide shutdowns, argued that the Civil Defense Act did not grant the governor the sweeping powers he has wielded.

The Civil Defense Act, passed at the beginning of the Cold War, allows the governor to declare a state of emergency and exercise broad authority when the state is threatened by enemy attack, sabotage, riots, fires, floods, earthquakes, droughts, or “other natural causes.”

Baker argued COVID-19 falls within the definition of natural causes, but the plaintiffs argued that interpretation was overly broad and would basically allow the governor to declare a state of emergency under almost any situation. The plaintiffs also pointed out that the Public Health Law, which was approved in 1909 and dealt specifically with infectious diseases, was the appropriate vehicle for addressing COVID-19; that law delegated most authority to local boards of health.

In its ruling, the court held that COVID-19 is “naturally caused” because “scientists believe it originated from an animal, likely a bat.” The court also said the coronavirus pandemic fit within the broad scope of the Civil Defense Act because the virus has killed more than 1 million people worldwide, there is no known cure, and a rise in cases could overrun the state’s healthcare system.

“We emphasize that not all matters that have an impact on the public health will qualify as ‘other natural causes’ under the Civil Defense Act, even though they may be naturally caused,” the court’s opinion said. “The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level. Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the Civil Defense Act, are contemplated for coverage under the Civil Defense Act.”

The court’s decision also said Baker is not usurping powers that belong to the Legislature. The court said Baker is acting under the Civil Defense Act, a law passed by the Legislature. The court also noted that the Legislature has passed several laws dealing with COVID-19 during the pandemic and has never passed a law limiting the governor’s authority.

In a footnote, the court took note that its counterpart in Michigan ruled in October that the governor there had exceeded her authority under that state’s Emergency Management Act. While the Massachusetts court decision noted that its Michigan counterpart addressed “facially similar issues,” it said the law in Michigan was different in key respects, particularly the requirement that the governor, to extend the state of emergency, needed the approval of the Michigan legislature.

The Supreme Judicial Court also dismissed broader constitutional issues raised by gubernatorial orders shutting down businesses, closing schools, and restricting the size of gatherings.

“To the extent the plaintiffs argue that operating a business, teaching one’s child, and assembling for religious reasons are burdened by the emergency orders, these arguments do not subject the emergency orders to strict scrutiny,” the court held, citing various court precedents. “The right to work is not a fundamental right that receives strict scrutiny; the orders do not ban teaching children, but rather limit gatherings in schools; and limitations on religious gatherings to mitigate COVID-19 risks are valid as long as the limitations are no more stringent than those imposed on similarly situated secular institutions, which they are in this case.”

Many of the issues the court settled with its decision on Thursday were debated by the Massachusetts Legislature in 2009. Former state senator Richard Moore filed a bill to address pandemic disaster preparation and response and the measure passed the House and Senate before stalling in a conference committee of lawmakers appointed to resolve differences between the two branches.

Moore said Massachusetts was just one of many states seeking to address how to deal with pandemics because the widespread view was that such disasters were on the horizon and state laws were poorly equipped to deal with them. Moore said in a telephone interview that he remembered opposition from many conservative lawmakers who were worried about delegating too much power to the executive branch.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

A roll call of the vote to engross the bill in the House shows then-state representative Karyn Polito voting against the measure. Polito is now lieutenant governor and a key member of the governor’s team for addressing the COVID-19 pandemic.

The court’s decision was affirmed by six of the seven justices who heard the case. Former chief justice Ralph Gants was not included because he died before the decision was prepared. The court opinion said Justice Barbara Lenk participated in the deliberations on the case prior to her retirement.