ON FRIDAY, six months after Governor Charlie Baker declared a state of emergency and began issuing shutdown orders in response to the COVID-19 pandemic, the Massachusetts Supreme Judicial Court will take up a threshold question: Were the governor's commands lawful?
Baker's March 10 declaration was followed by dozens of emergency orders affecting virtually every aspect of life in the Bay State. His decrees shut down Massachusetts businesses, houses of worship, and schools; banned elective surgery; restricted travel; closed beaches and theaters; prohibited sporting events; and limited weddings and funerals to 10 people. Almost overnight, they plunged Massachusetts into a painful recession.
The purpose of Baker's orders was irreproachable: to slow the spread of the coronavirus, which has now killed more than 180,000 people in the United States, and 9,000 in Massachusetts. Whether the decrees were the best way to address the pandemic is a question that epidemiologists and other experts will be debating for some time. But the matter before the state's highest court isn't whether Baker's unilateral orders were wise or well-intended. It is whether he had the legal authority to issue them.
The lawsuit was brought by a group of small business owners, pastors, and a private school headmaster. They argue that Baker's orders should be deemed invalid because they were issued under the state's 1950 Civil Defense Act — a law, they say, that does not apply to the coronavirus pandemic. That statute was enacted by the Legislature to empower governors "to defend Massachusetts from foreign invasions, armed insurrections, and similar catastrophic events," the plaintiffs contend, and it specifies in detail the types of crises that can trigger its provisions — war or enemy attack; riots or civil disturbance; severe drought; an escape of radiation from a nuclear plant; and "fire, flood, earthquake or other natural causes." The law makes no reference to disease because it was never intended to apply to disease. . . .