Legislature punted on emergency powers issue in 2009

Polito, then a rep, voted against broadening governor’s authority

“DON’T YOU HAVE to admit that Governor Baker has done a pretty darn good job here, especially when you compare him to the other states?”

That was a question Supreme Judicial Court Justice Elspeth Cypher posed during oral argument last month in Desrosiers v. Baker, the case brought by 21 individuals and businesses challenging the emergency orders the governor has issued in response to the COVID-19 pandemic. Strictly as a legal matter the question had no relevance — the governor’s actions are either valid or they are not. But it conveyed the trepidation that the justices and many Massachusetts residents may be feeling at the prospect of the utter nullification of the administration’s efforts to contain this unprecedentedly widespread and deadly virus. If those orders are struck down, what happens next?

The first claim in that lawsuit puts the legality of nearly all the governor’s orders at stake. It contends that the broad police powers conferred on the governor under the Civil Defense Act (the basis of his asserted authority) were intended by the Legislature to be strictly limited to circumstances involving foreign invasions or to natural catastrophes such as fires, floods, and earthquakes, and definitely not to outbreaks of disease. The governor’s use of those powers in this pandemic — shuttering businesses he deems non-essential and limiting the size of gatherings in churches and elsewhere — is flatly unlawful.

As a matter of statutory construction, the challengers have a point. The Cold War-era origin of the Civil Defense Act (when it was passed in 1950, Massachusetts, like many states, was preparing for the possibility of a nuclear war) supports their argument. Likewise, the act does not mention disease as a triggering event, and no previous governor has attempted to use it to respond to a public health crisis.

But if the Legislature did not intend the Civil Defense Act to apply to epidemics, what governmental powers are available to counter COVID-19? The challengers point to a set of laws, many of which date back to the eighteenth century, giving primary authority over public health not to the state but to cities and towns, and they argue that those laws should be controlling today. “Hundreds of healthcare professionals and local boards of health across the Commonwealth,” they assert, “stand ready to…craft community-specific solutions to address their communities’ unique needs.”

In fact, contrary to the challengers’ claim, hundreds of healthcare professionals and local boards of health believe that those laws are entirely deficient. In July, 224 of them wrote to the governor expressing concern that local responses to the pandemic were resulting in gaps and inconsistency in messaging, enforcement capacity, and data reporting, and they called for stronger laws and more state assistance. “Because viruses do not respect municipal borders,” they wrote, “the extreme variability of protections provided across municipal health departments pose a risk and harm to all communities.”

The Massachusetts Health & Hospital Association agreed in an amicus brief supporting the governor’s authority, dismissing as “nonsensical” the challengers’ assertion that local boards of health can handle the crisis: “Useful collective action, moreover, could only be taken on a statewide basis…. Without a statewide baseline, the crazy quilt of municipal responses would be ineffective at best, and likely counter-productive.”

Since at least 2001, when terrorists sent letters containing anthrax spores through the nation’s postal system, which in turn prompted fears of a weaponized smallpox attack, public health professionals have warned of the inadequacy of the public health laws the challengers say Massachusetts can safely rely on in this pandemic. Writing in the Massachusetts Law Review in 2002, Warren Kaplan, now a professor at the Boston University School of Public Health, called those laws “hopelessly outdated.”

As just one example of an unworkable law still on the books, he cited General Laws chapter 111, section 106, which gives some towns powers to restrict travel during a disease outbreak. Originally enacted in 1739, when the population of Massachusetts was less than a quarter million, it allows boards of health in towns “near to or bordering upon an adjoining state” to “examine such travelers as the board suspects of bringing any infection dangerous to the public health, and, if necessary, restrain them from traveling until licensed thereto by the board of health of the town to which they may come.”

Antiquated statutes such as this, Kaplan argued, would be irrelevant in event of a fast-moving or highly contagious outbreak in a state of (now) 7 million people. He urged the Legislature to update those laws to allow the statewide response that would be necessary.

Such an update nearly happened during the swine flu epidemic a decade ago. Sen. Richard Moore filed a bill that expressly permitted the governor to use the police powers in the Civil Defense Act to counter a public health emergency. It also imposed some accountability on executive branch authority, requiring the governor to renew any public health emergency declaration every 90 days, and it amended some public health laws and repealed others in an effort to establish greater cooperation between the state and municipalities. The Senate passed a version of that bill unanimously in April 2009.

But by the time the House considered the bill months later, Tea Party groups nationwide were protesting against perceived governmental overreach, with particular anger directed at President Obama’s health care proposal. A likeminded group in Massachusetts launched a campaign against the update effort, which talk radio amplified.

In an effort to blunt that opposition, the House offered up a weaker version of the Senate bill, which still attracted 36 “no” votes, including that of then-Shrewsbury Rep. (and now Lt. Gov.) Karyn Polito. The bill passed the House, but in the face of rising opposition the legislation faltered, no bill ever reached the governor’s desk, and in the decade since, no similar health threat has pressed the Legislature to act.

If state law had been amended to allow the governor to exercise the police powers of the Civil Defense Act in a public health emergency, constitutional challenges to those powers could of course still arise, as they did when a judge overturned the governor’s designation of gun shops as non-essential businesses. But unlike today, the resolution of those challenges would not risk the possibility that the state lacks a legal basis to mount a collective response to this pandemic.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.