By Chris Lisinski
SEPT. 11, 2020…..Six months into the COVID-19 pandemic, the state’s highest court is poised to decide whether Gov. Charlie Baker’s string of executive orders were a legally appropriate response to contain the highly infectious virus or if he overstepped the authority outlined in law.
An attorney representing business owners and religious leaders who sued the Baker administration argued in court Friday that Baker has “turned the government upside down” by taking significant individual action, rather than executing laws passed by the Legislature, during the public health crisis.
“At this point, the Legislature is left to approve or disapprove of the governor’s policy choices,” Michael DeGrandis, a lawyer with the New Civil Liberties Alliance, told justices. “That’s not how it’s supposed to work. The governor is merely supposed to execute the policy choices of the Legislature. For the Legislature to make a change, the Legislature would also have to have a veto-proof majority to do so. That is standing the government on its head. That’s not a republican form of government.”
Baker declared a state of emergency on March 10, and has issued numerous executive orders charting a course for Massachusetts through the pandemic. His orders ranged from ordering businesses deemed non-essential to shutter physical operations to closing K-12 schools to limiting how many people can gather in one place.
The alliance, a national non-profit that describes itself as fighting the “unconstitutional administrative state,” filed a lawsuit against Massachusetts on June 1 on behalf of several plaintiffs who own businesses or represent religious institutions impacted by forced shutdowns and mandatory operational changes during the pandemic.
At the core of the plaintiffs’ case is the Civil Defense Act, a 1950 law covering emergency preparedness on which the administration based its response. The statute outlines allowable causes for emergency declarations, including acts of war, natural disasters and “other natural causes,” but does not explicitly name a pandemic.
DeGrandis argued that, because pandemics are not listed, Baker overstepped his legal authority. The Public Health Act, which directs the main responsibility for disease control to local boards of health, should instead govern the state’s COVID-19 response, he said.
“The petitioners have been doing their part. They will always do their part. They have abided by the governor’s orders as best as they could understand the governor’s orders and will continue to do so as long as this court decides these are lawful orders,” DeGrandis said. “This is an issue of process and what is the character of Massachusetts government. Is it a government of laws or a government of men?”
State officials have contended that Baker was well within his authority to lean on the Civil Defense Act. While it may not use the word “pandemic,” they argue it grants broad authority for response to crises stemming from natural causes.
“The pandemic clearly falls within that: it arises from a natural cause, a fact that’s undisputed in this case, and it is causing a disaster of massive proportion within the commonwealth and across the country,” Assistant Attorney General Doug Martland told justices.
The Legislature spent the first several months of the crisis on uncertain ground, meeting only in lightly attended informal sessions where a single lawmaker’s dissent could stall any bill. During that period, the governor took numerous executive actions enacting binding rules to govern life in Massachusetts.
Both branches now have processes in place to hold formal sessions with remote voting, and they have generally worked with the administration on a range of COVID-era responses, such as a more than $1 billion supplemental budget, a temporary ban on evictions and foreclosures, and an expansion of mail-in voting.
Martland said Friday that the Legislature could have amended the Civil Defense Act any time since March to make it clear that it does not apply to pandemics, but lawmakers have not done so.
“We have the Legislature confirming and ratifying the governor’s decisions in a host of legislation,” Martland said. “That includes the declaration of emergency being a contingency for the operation of the statute. We also have the Legislature appropriating over $1 billion in funds to the commonwealth’s COVID relief response, and if the Legislature had any indication of disapproving, certainly this court can conclude they would have done something more than that.”
The Massachusetts Fiscal Alliance, which has been critical of Baker’s pandemic response, has vocally supported the lawsuit, though it is not a plaintiff in the case.
“Massachusetts residents and businesses that have fallen victim to the Governor’s orders, either by closing their small business for good or having their freedoms and liberties limited, should feel a sense of relief that their side of the argument was finally heard by the public and the state’s highest court,” Fiscal Alliance spokesman Paul Craney said Friday. “We hope the justices will rule in favor of those in Massachusetts who are suffering and do not have a voice due to these orders.”
Judges asked several questions from attorneys on both sides, but did not offer an indication of which way they lean on the case nor when they plan to issue a ruling.
Judges probed the plaintiffs’ attorney on why a pandemic did not fall into the “natural causes” definition and how the Legislature could respond if they found Baker’s actions excessive, and asked the state’s attorney how long an emergency authorization should last. Martland said “it depends on the circumstances.”
Asked by Justice Elspeth Cypher whether local public health boards have the capacity to manage a global pandemic, DeGrandis replied that it was not for him to decide but that lawmakers effectively ruled that by placing authority with cities and towns in the Public Health Act.
At the start of the hearing, Justice Frank Gaziano said that Chief Justice Ralph Gants — who underwent surgery following a heart attack one week ago — would follow the proceedings and planned to participate in the final decision.