Governor’s COVID-19 orders are unconstitutional

Liberties cannot be infringed just because risks exist

WHILE UNDOUBTEDLY well-intentioned, Gov. Charlie Baker’s orders purporting to regulate Massachusetts businesses and individuals in response to COVID-19 are unconstitutional, unscientific, and destructive.

The animating principle of our nation is the maximal safeguarding of human liberty.  The Declaration of Independence proclaims that the rights to “Life, Liberty and the pursuit of Happiness” are “unalienable,” and governments are created “to secure,” not destroy, these rights.  Our state constitution (like the federal one it inspired) divided government into three branches to avoid concentrated power, and Article 30 of the Declaration of Rights expressly provides that “the executive shall never exercise the legislative . . . powers, . . . to the end it may be a government of laws and not of men.”

The Bill of Rights enumerates numerous personal freedoms, and the Ninth Amendment makes clear this enumeration “shall not be construed to deny or disparage others retained by the people.”  The Fourteenth Amendment broadly protects “life, liberty [and] property,” and the Supreme Court has recognized that “liberty” is defined in substantial measure by our country’s history and traditions.

Under these principles, the governor’s orders fail abjectly.  Most basically, as contended in a suit recently filed in Worcester Superior Court, Desrosiers v. Baker, the governor lacks statutory authority for his COVID orders, so their issuance violates Article 30’s separation of powers requirement.

The Commonwealth has extensive public health statutes that date to the colonial era and specifically address infectious disease outbreaks.  Under these provisions—most notably Massachusetts General Laws chapter 111, section 95—the only restraints on liberty the government may impose are temporary isolation of any “sick or infected person” and quarantining of others in his household, in each case with compensation for resulting wage loss.

These provisions have provided the Commonwealth’s response to countless epidemics and pandemics over the last 300 years, including annual smallpox outbreaks (fatal in 30 percent of cases and spread by coughing and sneezing) in the early days of the republic, global pandemics from novel influenza viruses (including in 1917-18, 1957-58, and 1967, with an estimated 675,000, 116,000, and 100,000 US deaths) and annual flu epidemics from non-novel viruses (with an estimated 51,000 and 61,000 deaths in 2014-15 and 2017-18).

Knowing the infectious disease statute affords him no authority, the governor has chosen instead to rely on Chapter 639 of the Acts of 1950, the “Civil Defense Act of 1950.”  Under section 5, an emergency declaration is permitted only for enumerated circumstances including war, a nuclear power plant radiation release, or “the occurrence of any disaster or catastrophe resulting from attack, . . . riot . . . or from fire, flood, earthquake or other natural causes.”  Any belated attempt to rely on the last clause should be unavailing from the outset, since the Legislature has enacted a statute that expressly governs disease outbreaks.  Regardless, under the normal statutory interpretation canon of ejusdem generis, general clauses such as “other natural causes” that follow enumerated examples are limited to events like those examples.  While fires, floods, and earthquakes are all phenomena that physically alter the earth in a defined area, diseases manifestly do not do so.

Even if the statute could generally apply, it would not authorize the governor’s specific orders.  While section 7 authorizes orders “relative to . . . [l]abor, business or work on Sundays or legal holidays,” it provides no power to close businesses during the normal work week or on Saturday, as the governor purported to do.  While the statute authorizes orders relating to “educational facilities supported in whole or in part by public funds, in order to extend the benefits or availability thereof,” it provides no authority to close schools, or to regulate privately funded ones at all.

Moreover, even if supported by statutory authority, the governor’s orders would be unconstitutional.  Forced closures of businesses, schools, and places of worship; prohibitions on gatherings or of humans approaching or touching one another; and mandates that people cover their faces in public are radical and unprecedented, and unquestionably infringe both expressly enumerated and historically enjoyed rights. These include individuals’ rights to move about freely, associate with others as they choose, express themselves through their appearance, make decisions about their own health, educate their children, exercise their religion, and support themselves through their chosen occupation, and businesses’ rights to operate within the bounds of the law.

Government infringement on individual liberty cannot be justified by the mere existence of some degree of risk; rather, the individual’s conduct must pose a serious risk of significant harm.  We do not limit freedom of movement by banning driving because it poses risk; instead, we prohibit only reckless or drunk driving.  For this reason, Massachusetts’ public health statute does not authorize shutting down normal life due to the risk of infection, but instead restricts the liberty only of a person who is actually infectious, or his close household contacts who have a significant likelihood of being so.

Here, it was evident from Chinese data even before any US outbreak, and has been amply confirmed in Massachusetts since, that COVID-19 poses a serious threat only to a limited set of vulnerable individuals, i.e., the very elderly and those with serious underlying conditions.  According to the Department of Public Health’s web site, 63 percent of all Massachusetts deaths have occurred in long-term care facilities, the average age of death is 81 and no one under age 20 has died; also, fully 98.2 percent of deaths have involved pre-existing conditions.  Based on these data, if mandatory measures were needed, they should have been targeted to these vulnerable groups, not imposed sweepingly throughout the Commonwealth (most shockingly to schools, where students face essentially zero serious risk).

In addition, most of the mandatory measures are predicated on possibilities that are very small, principally that a person may be unknowingly infectious to others.  The best data suggest this might be so for one to three days before a person becomes symptomatic, so even at the epidemic’s height in April when about 2,000 new cases were diagnosed per day, a total of about 6,000 people out of the Commonwealth’s 6.8 million, or 1 in 1,133, might be in this state to begin with.

Accordingly, the likelihood that an encounter with another individual would actually transmit disease would not exceed that, and in reality it would be exponentially lower depending on the proximity and duration of the encounter, whether the other person was coughing or sneezing and in what direction, ambient temperature, humidity and ventilation conditions, the viral load transferred, the health and immune system of the recipient and so on.  If some individuals are concerned about such risks they are free to protect themselves by keeping a distance or wearing a mask (which affords only modest protection against respiratory droplets and virtually none against tiny aerosolized particles).  But those who are willing to accept such risks in order to live life have a fundamental right to do so, and the fact that exercising this right may cause some increase in disease cases provides no ground to quash it.

Rather than inapplicable or minimal risks, the only conceivably valid justification for mandatory measures might be to keep hospitalizations within our health care system’s capacity—the original “flatten the curve” argument.  But even at the epidemic’s height in April, DPH data indicated that less than 4,000 of the state’s 18,200 suitable hospital beds, or only 22 percent, were occupied.  And if capacity were actually being approached, measures such as adding temporary physical and staffing capacity, transferring patients and the like, rather than statewide shutdowns, could address this—or, in the worst-case scenario, shutdowns could target the specific geographic areas where capacity was truly threatened.

At bottom, the governor’s orders have no reliable scientific basis.  Science entails the precise and logical application of specific and relevant objective data to the situation at hand.  Vague incantations that experts “advise” something to be “safe” are not science.  Indeed, our courts every day preclude well-credentialed experts from testifying to their opinions precisely because they are not logically founded on objective and relevant facts.

Finally, beyond their inherent harm in depriving Massachusetts residents of their fundamental freedoms, the governor’s decrees have caused immense tangible harm.  Businesses have lost vast sums, and many have gone or will go out of business.  Unemployment has approached Great Depression levels.  Individuals cannot afford their rent, mortgage payments, or food.  People have died from heart disease, stroke, and cancer, or lost limbs from diabetes, due to prohibitions against non-COVID health care or avoidance based on irrational fear stoked by the governor’s pronouncements.  Depression, suicide, alcoholism, other substance abuse, and domestic violence have increased. Students have been deprived of real education.  All have been deprived of normal human interaction.  And daily life is fundamentally dystopian.

Meet the Author
It is unclear what induced the governor’s radical measures.  Perhaps it was fear of the unknown, the lockdown examples set by China and Italy (one a totalitarian state and the other with a history of fascism and communism), or the news media’s unceasing coverage of the latest possible catastrophe to destroy the world.  But what is clear is that the governor’s orders are unconstitutional, unscientific, and destructive.  The people of the Commonwealth should rise up against them, insist that they cease immediately, and ensure that they never recur.

David R. Geiger is a partner and former litigation department chair at Foley Hoag LLP and an elected member of the American Law Institute. The views expressed here are his own.