Baker overreacting on vaping decision

Court’s requirements don’t encroach on his authority

GOV. CHARLIE BAKER says the courts are trying to restrict his authority to declare a public health emergency, but that claim seems like an overreaction.

Baker’s emergency order banning the sale and display of all vaping products until January was challenged in court and on Monday a trial court judge issued a ruling that directs the administration to comply with the state’s administrative procedure laws by this coming Monday.

The ruling requires the administration to reissue its executive order as an emergency regulation, which will expire on December 24 unless, in the meantime, the administration holds a hearing giving members of the public an opportunity to comment.  The court’s ruling applies to nicotine-vaping products only — the ban on cannabis products remains in place. 

The administration immediately asked the state Appeals Court to set the trial court’s ruling aside, asserting that, otherwise, the health and safety of Massachusetts residents would be in “immediate jeopardy.” He also raised the stakes on Wednesday, saying the trial court’s decision had called into question “whether or not we have the authority to implement a public health emergency” – quite an overreaction from an administration not usually given to hyperbole.

The administration needs to do only two things to comply with the order. First, issue the original executive order as an emergency regulation. This involves filing a regulation with the Secretary of State, together with a finding that the immediate adoption of the regulation is necessary to preserve the public health and a brief statement of reasons for that finding.  Second, sometime before December 24, conduct a public hearing on the regulation and inform the Secretary of State that the hearing has taken place.

Neither of these requirements encroaches at all on the governor’s authority to declare a public health emergency. The Baker administration issues emergency regulations routinely, including eight this month alone. And, as the trial court commented on the public hearing requirement, “the avoidance of public scrutiny or expense of public process” is not a cognizable harm that a court ought to be taking into account. 

Late Wednesday the Appeals Court denied the administration’s motion to overturn the judge’s ruling on Monday.  The Governor’s next move — either to seek relief at the Supreme Judicial Court or to comply with the very modest requirements imposed by the trial court — will show how committed he is to transparency in the usual course of governance.