Challenge to Baker emergency powers likely to fail

Concerns should be dealt with in Legislature, not courts

A GROUP OF MASSACHUSETTS entrepreneurs, pastors, and an educator has mounted a court challenge to Gov. Charlie Baker’s authority to issue emergency orders to address the novel coronavirus in the Commonwealth. According to Michael Degrandis, counsel for the plaintiffs, the governor has unconstitutionally “usurped the role of the Legislature by exercising the police power”—that is, the power to protect the health and safety of Massachusetts residents. This challenge is likely to fail, for several reasons.

In particular, the plaintiffs argue that the governor cannot rely upon the Massachusetts Civil Defense Act, enacted in 1950, because the Legislature intended that special law to apply only to “an attack, sabotage or hostile action,” and the act cannot be read “to suggest that a health crisis is the equivalent of a Civil Defense crisis.”

At the same time, however, the act plainly contemplates executive action in response to a wide array of potential disasters, including catastrophes resulting from “fire, flood, earthquake or other natural causes; … or whenever the accidental release of radiation from a nuclear power plant endangers the health, safety, or property of people of the commonwealth.”

Further, as the plaintiffs acknowledge in their complaint, Massachusetts governors have relied on the act to declare emergencies in the wake of nor’easters, winter storms, and, most recently, the Merrimack Valley gas explosion—none of which came close to endangering the lives of as many residents as the coronavirus pandemic has.

Importantly, the Legislature has for more than half a century allowed governors to issue emergency orders pursuant to the act unrelated to “an attack, sabotage or hostile action,” just as the current Legislature continues to permit Baker to do the same. This is how John Adams and the framers of the Massachusetts Constitution envisioned the separation of powers: with the Legislature exercising its authority to regulate in the interest of protecting the health and safety of Massachusetts residents by empowering the governor to act. It should not matter that the Legislature did not expressly name every possible contingency that might immediately threaten residents of the Commonwealth.

The Supreme Judicial Court observed in Commonwealth v. Gonsalves that the Massachusetts Constitution does not create three “watertight compartments” of government. As the court put it in a 1977 advisory opinion, for government to function, “an absolute division is neither possible nor always desirable.” A constitutional problem arises only when one department of government aggrandizes its power at the expense of another—in other words, when one department interferes with another’s ability to perform its core functions.

No aspect of Baker’s emergency orders purports to restrict either the Legislature or the judiciary from performing their core functions. The Legislature is free at any time to rescind or modify the governor’s statutory authority to issue emergency orders. Further, there is no suggestion that the governor has sought to use his emergency authority in ways that do not relate to halting the spread of the virus and ensuring the protection of Massachusetts. Indeed, the scope and breadth of the emergency orders continues to narrow as the epidemiological evidence suggests that the Commonwealth has thus far been successful in its efforts to flatten the coronavirus curve.

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At the end of the day, complaints about the extent and substance of the governor’s emergency orders are best addressed not to the judiciary, but to the Legislature itself. As Supreme Court Chief Justice John Roberts recently reminded us in his concurrence in South Bay United Pentecostal Church v. Newsom, state governments are dealing with a disease for which there is no cure, treatment, or vaccine. Covid-19 has resulted in thousands of deaths in Massachusetts alone, with many thousands more across the country. Unelected judges, the chief justice correctly noted, lack “the background, competence, and expertise” to be second-guessing a state’s efforts to address the emergency occasioned by this disease.

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.