For seven decades, Massachusetts law has granted governors sweeping emergency authority during crises: record-setting snowstorms, hurricanes, floods. Normally these are brief calamities, and the orders stop soon after the threat recedes.
But now, amid a global pandemic, the vast and indefinite nature of the governor’s emergency power has rushed into focus.
Governor Charlie Baker’s COVID-19 emergency declaration entered its fourth month last week, a span in which he’s imposed more than three dozen orders to fight the virus, closing businesses, requiring masks in public, and reshaping many aspects of daily life, from children’s day care to sunbathing.
All his orders carry the power of law — in some cases, the potential for hefty fines — and collectively, they go far beyond the actions Baker or his predecessors have taken under previous emergency declarations.
Governors nationwide have issued similar directives under their own emergency laws, hoping to slow a disease that has sickened more than 105,000 and killed more than 7,600 people in Massachusetts alone.
Similar to statutes in other states, the 70-year-old Massachusetts law that gives Baker his emergency powers authorizes him to unilaterally choose not just when to declare an emergency but when to end it. That means he can exercise that broad authority for an undefined amount of time and with few, if any, specified checks in the law itself.
Case in point: The emergency declaration Baker issued after gas explosions and fires ripped through the Merrimack Valley in September 2018 has quietly remained in place for 600-plus days, even as settlement checks have started to go out and the region continues its slow recovery.
Many of the state statutes that allow for emergency gubernatorial powers, including Massachusetts’s 1950 Civil Defense Act, were crafted with enemy attacks in mind or specific catastrophes, such as floods, earthquakes, or fires. "Sudden, unexpected things that transpired very quickly,” said Elizabeth Goitein of the New York University School of Law’s Brennan Center for Justice.
“They’re not talking about an 18-month epidemic,” said Goitein, co-director of the center’s liberty and national security program. That, she said, can create challenges over time. “The justification of a governor taking on the function of the Legislature in that context is there’s not enough time for the Legislature to get together and make new laws. That justification gets weaker and weaker the longer the state of emergency goes on.”
Baker last week pointed to life after the state’s COVID-19 emergency, filing a bill he says will strengthen rules for reporting coronavirus data when his orders “fade away.”
But in the face of an unprecedented virus, his administration has given no timeline for that. Baker has routinely said the state is guarding against a potential second wave of infections, a development that would undoubtedly keep his emergency declaration, and Baker’s ability to act quickly and broadly, in place.
“The administration will continue to take all measures necessary to address the impacts of the virus,” said Terry MacCormack, a Baker spokesman.
Emergency declarations are common enough. Before the pandemic hit, Baker and his predecessor, Deval Patrick, combined to make 10 declarations since 2011, usually after hurricanes or storms battered the state’s coastline. In the vast majority of cases, they lasted only a few days.
The declaration after the Merrimack Valley explosions bucked that trend, and, according to Baker’s office, remains in place to “support” a Department of Public Utilities order that Columbia Gas pay for independent assessment of its restoration work in Lawrence, Andover, and North Andover.
It’s in battling COVID-19 that those powers have reached further than ever, transforming residents’ lives in ways that would have been unthinkable before the pandemic hit.
Baker has issued no fewer than 37 executive orders, banning gatherings of more than 10 people, instituting a public mask requirement if people can’t socially distance, and giving him a sweeping hand over what businesses can operate. While some industries have bristled at the new rules, the vast majority of the public — 84 percent of respondents to one poll in early May — has approved of the steps he’s taken to protect public health.
Under the Civil Defense Act, Baker holds authority over everything from public records to transportation to the sale of food, with no specific provision giving the Legislature the ability to unilaterally end the emergency. In fact, some of Baker’s orders could "end at different times after the declaration is over,” according to his office.
Some states put a legislative check on executive authority in emergencies. In Georgia and Oklahoma, state law requires the legislatures approve any initial declaration of emergency, according to research by John Dinan, a Wake Forest University professor who studies state policy making and constitutions.
Other states, including California and Florida, allow their legislative bodies to end a state of emergency through a joint or concurrent resolution, according to the national security blog Lawfare. It’s a path Pennsylvania’s Republican-controlled General Assembly has tried to take, edging into its own unprecedented legal fight against Democratic Governor Tom Wolf.
Some laws put time limits on emergency powers, unless they are renewed, and amid the pandemic, partisan battles have quickly spilled from the legislative floor into the courts.
In Michigan, Governor Gretchen Whitmer, a Democrat, and the Republican-controlled Legislature have for months tussled over her emergency powers, which under one law expire after 28 days without a legislative extension. When lawmakers didn’t act on a request from Whitmer, she instead invoked a second law, decades older than the first, and issued a new set of executive orders — one minute after the old ones expired. A court later upheld Whitmer’s emergency declaration.
In Wisconsin, the state’s highest court rejected the extension of its state’s stay-at-home order, siding with Republican legislators over the administration of Democratic Governor Tony Evers.
Democratic leadership in the Massachusetts House and Senate has, to date, shown broad deference to Baker’s emergency authority. There’s been no formal public discussion about amending the laws that underwrite Baker’s authority. If anything, the Massachusetts House signaled it, too, is preparing for an extended declaration, writing in its rules that its own state of emergency can last until January.
A group of businesses, with the backing of a conservative group, has sued Baker to overturn the emergency orders, likening his authority to that of a king. But in suing, it didn’t seek a preliminary injunction, slowing for the moment any formal legal actions.
“The Civil Defense Act was put in place to deal with extraordinary public emergencies. Unfortunately, we now find ourselves in the midst of one,” said Lon Povich, a former chief legal counsel to Baker. “This is a tool the governor has to work with through these extreme situations.”
Nevertheless, the intensity and longevity of the emergency declarations have thrust a new level of attention on gubernatorial powers.
“We haven’t fully appreciated how much power we put in the governor," said Dinan, the Wake Forest professor. “This is the first time in any sustained way, we’ve really given the governors a lot of power in these statutes. . . . And the more aggressive the powers and the longer they go on for, there starts to be a case for other actors and officials being at the decision-making table.”
Even if unwritten in state law, other checks do exist. Baker and other governors have faced lawsuits on constitutional grounds, with gun shops and prospective owners successfully overturning one of Baker’s orders last month when a judge ruled it infringed on people’s Second Amendment rights.
There’s also the court of public opinion, where political pressure can bend governors’ actions where legal levers can’t.
“I don’t lie awake at night thinking that we will never exit the state of emergency,” said Daniel Farbman, an assistant professor of law at Boston College. Should public support for Baker’s order and emergency declaration crater, “it’s extremely unlikely" Baker would forge on, he said.
“He is a creature of public will."