Massachusetts Governor Charlie Baker was within his constitutional authority to issue broad executive orders shutting down most of the state in an effort to restrict the spread of the coronavirus, according to the Supreme Judicial Court’s most recent opinion. The Court’s decision ends a case brought by a diverse group of Massachusetts business and religious organizations that sued the Governor in June. The issue in the suit was the legality of the Governor’s COVID-19 orders which he issued under a state law known as the Civil Defense Act, which granted his office broad authority “to protect the public peace, health, security and safety, and to preserve the lives and property of the people of the commonwealth”. Recognizing the severity of the COVID-19 pandemic, the Court held that “the Governor is not, as the plaintiffs argue, ‘donning the mantle and crown’… he is making difficult decisions…” in order to execute his duties under state law.

In response to the rise in COVID-19 cases in the late winter of 2020, Massachusetts Governor Charlie Baker issued a series of executive orders placing significant restrictions on daily activities, including prohibiting gatherings of more than 10 persons, ceasing all in-person operations at non-essential businesses, closing restaurant and bars from dine-in service, and closing schools. Beginning in May, the Governor slowly eased these restrictions in a phased manner based on public health data his office received about the evolving impact of the coronavirus in the Commonwealth. However, even today, as cases begin to spike anew, the Governor has rolled back the state’s reopening to earlier phases and many restrictions remain in place.

In June, a group of businesses, a religious academy, and two religious houses of worship filed suit in state court challenging the Governor’s orders and seeking an injunction. The plaintiffs argued that the Governor’s authority under the Civil Defense Act was limited and that his issuance of COVID-19 orders violated their constitutional rights. The case was reported and transferred to the Supreme Judicial Court. The Court was asked to address two key questions: (1) whether the Civil Defense Act provided Governor Baker with the authority to declare a state of emergency and issue of the emergency orders and (2) whether those orders violated the state’s and federal constitution’s separation of powers doctrine or otherwise violated the plaintiffs’ constitutional rights to procedural and substantive due process or free assembly.”

The Civil Defense Act has an interesting history. In the years following World War II, the battle for military and geopolitical influence between the United States and the Soviet Union began the Cold War, the tension of which was escalated in 1949 when the Soviet Union’s successful test of a nuclear bomb marked their placed as a nuclear power. In the highest levels of the United States government, it was believed that the nation was unprepared for the prospect of a nuclear disaster or another great war. The Civil Defense Act was enacted in 1950 to provide the Governor with “expansive discretionary powers” during a declared state of emergency.

“Because of the existing possibility of the occurrence of disasters of unprecedented size and destructiveness resulting from enemy attack, sabotage or other hostile action, in order to insure that the preparations of the commonwealth will be adequate to deal with such disasters, and generally to provide for the common defense and to protect the public peace, health, security and safety, and to preserve the lives and property of the people of the commonwealth, if and when the congress of the United States shall declare war, or if and when the President of the United States shall by proclamation or otherwise inform the governor that the peace and security of the commonwealth are endangered by belligerent acts of any enemy of the United States or of the commonwealth or by the imminent threat thereof; or upon the occurrence of any disaster or catastrophe resulting from attack, sabotage or other hostile action; or from riot or other civil disturbance; or from fire, flood, earthquake or other natural causes… the governor may issue a proclamation or proclamations setting forth a state of emergency.”

In its analysis, the Court noted that the Civil Defense Act called upon the Governor “to protect the public peace, health, security and safety, and to preserve the lives and property of the people of the commonwealth.” Pointing to the incredible death toll, rampant transmission, and the threat of overwhelming the Commonwealth’s hospital and health care system, the Governor was empowered by the statute to respond to the COVID-19 pandemic as it was a serious disaster arising from “other natural causes.” The Court stated that Governor’s exercise of broad powers in the face of a pandemic, while rare, is not unprecedented – noting that in 1701, quarantine legislation aimed at preventing epidemics broadly empowered the Governor to act to quell the spread of a “plague, smallpox, pestilential or malignant fever, or other contagious sickness”.

Another argument asserted by the plaintiffs was that the Public Health Act (PHA), and not the Civil Defense Act, controlled as it delegates authority to respond to a pandemic to municipal health departments. The Court held that the Civil Defense Act can operate simultaneously because it serves a different purpose – the Act “contemplates the need to prepare for and respond to a serious disaster requiring swift, top-down, coordinated relief efforts,” and that certain situations, such as the COVID-19 pandemic, are those “that cannot be addressed solely at the local level… [which] exceed[s] the resources and capacities of local governments and boards of health.” Despite its acceptance of the Governor’s exercise of authority under the Civil Defense Act, the Court cautioned that there were limits to the Governor’s powers under the Act. The Court cautioned that when the public health evidence establishes that the pandemic no longer constitutes such an emergency, the Governor is no longer empowered to undertake such action.

The Plaintiffs further argued that the Governor, in crafting his restrictive executive orders, was creating new law, a responsibility granted exclusively to the legislature. However, the Court held that because the Governor’s actions were within the express authority as granted to him by the Legislature in enacting the Civil Defense Act, he merely was executing his duties and did not overstep the constitutional limitations of the Governor’s office. That his authority was broad did not render it unconstitutional.

Aware of the ruling of the Michigan Supreme Court striking down that state’s Governor’s extended COVID-19 orders under two similar statutory schemes, the Court noted two points of distinction. The first Michigan statute, unlike Massachusetts’ Civil Defense Act, limited the exercise of the Governor’s emergency powers to 28 days, after which legislative approval was required for any extension and, in Michigan’s case, not given. The Michigan Governor’s attempt to issue COVID-19 orders under a different statute permitting such authority when the Governor deemed it as “reasonable” and “necessary” was held unconstitutional, as the Michigan Supreme Court found it impermissibly delegated legislative authority to the executive branch because of the broad scope of such powers of indefinite duration. However, the Civil Defense Act provided substantially more detail and guidance than the Michigan statute, passing constitutional muster.

Plaintiffs further argued that the process undertaken by the Governor in issuing his orders violated their constitutional right to due process as they lacked “the opportunity to be heard in the form of an appeal or a petition for a waiver of Governor Baker’s arbitrary classifications of their organizations.” Batting down this argument, the Court noted that the Governor’s orders were not adjudications involving individuals but were of general application, which does not require the same process considerations. Since the Governor’s orders applied to broad categories of similarly situated businesses and organizations and grounded in public health data and science, the orders were not arbitrary, and, applying a rational basis standard of review, they did not violate the plaintiffs’ substantive due process rights.

Finally, the Plaintiffs argued that the Governor’s orders violated their constitutional rights to assembly. While the Governor’s orders were time, place and manner restrictions properly subject to constitutional scrutiny, the orders were content-neutral and “narrowly tailored to serve a significant governmental interest”. In light of alternative means of exercising the right to assemble, be it through virtual gatherings or those with reduced capacity, the Court held that the orders did not violate the Plaintiffs’ constitutional rights.

The Court also noted the U.S. Supreme Court’s denial of a request by a group of California churches to enjoin enforcement of that state’s COVID-19 orders which prohibited the quantity of gatherings, including in houses of worship. Relying, in part, on Jacobson v. Massachusetts, 197 U.S. 11 (1905), Justice Roberts’s concurring opinion stated that “[the] United States Constitution principally entrusts ‘[t]he safety and health of the people’ to the politically accountable officials of the States ‘to guard and protect… [and] [w]hen those officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad….”

https://www.natlawreview.com/article/governor-baker-s-covid-19-closure-orders-held-constitutional