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OPINION

Courts find pandemic orders unlawful in Michigan and Pennsylvania. Will the SJC do the same?

When governors go too far, it is the job of the courts to rein them in.

Governor Charlie Baker during a press briefing in April, when he extended a stay-at-home advisory and an order closing "non-essential" businesses.
Governor Charlie Baker during a press briefing in April, when he extended a stay-at-home advisory and an order closing "non-essential" businesses.Matthew J. Lee/Globe staff

Pending before the highest court in Massachusetts is Desrosiers v. Baker, a lawsuit challenging the many unilateral orders Governor Charlie Baker has issued since declaring a state of emergency seven months ago. The Supreme Judicial Court heard oral arguments in the case on Sept. 11, but hasn’t yet issued a decision. That delay has a silver lining: It allows the justices to take into account rulings handed down by two other American courts in similar cases in recent weeks.

Baker’s orders were intended to slow the spread of the highly contagious coronavirus, and affected almost every aspect of life in Massachusetts. On the governor’s say-so, businesses were shuttered, religious services banned, schoolrooms emptied, medical appointments halted, and travel restricted. The economic price was steep: a sudden recession and painfully high unemployment.

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Whether Baker’s orders were prudent and effective can be debated, but on the whole he has gotten high marks for his handling of the pandemic. The question before the SJC, however, isn’t whether the governor’s decrees were astute. It is whether they were sanctioned by law.

Baker invoked the state’s Civil Defense Act, and claimed sweeping, indefinite power to rule by decree without legislative approval. The plaintiffs challenging Baker — a group of business owners, pastors, and a private school headmaster — argue that the act doesn’t apply to pandemics and that the governor’s orders were issued without legal authority. What’s more, they contend, many of his orders violate rights of due process and assembly guaranteed by the US Constitution.

Comparable arguments have been raised in other states. Decisions in two of those cases — one in Michigan, one in Pennsylvania — provide fresh and relevant precedents for the SJC to consider.

Last week the Michigan Supreme Court struck down all the pandemic lockdown orders issued since April 30 by Governor Gretchen Whitmer under the state’s Emergency Management Act, a law akin to the Massachusetts statute relied on by Baker. A separate emergency powers statute invoked by Whitmer was declared unconstitutional, on the grounds that it amounts to “an unlawful delegation of legislative power to the executive branch.”

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Of course, there are differences between the Massachusetts and Michigan situations — not least that Whitmer has faced resistance from many lawmakers in her state, while the Massachusetts Legislature has not objected to Baker’s orders. But there are similarities, too.

In reaching its decision, the Michigan Supreme Court relied in part on a 1944 opinion by none other than the Massachusetts Supreme Judicial Court, which concluded that a governor could not use his emergency powers even for a purpose as benign as altering the date of a primary to make it easier for soldiers to vote. In that opinion, the SJC insisted that laws bestowing emergency powers on the governor cannot be a blank check. “The Legislature cannot constitutionally grant to the governor a roving commission to repeal or amend by executive order” any and all provisions of state law, wrote the Massachusetts justices in language quoted by the Michigan court.

As the highest authority on the interpretation of Massachusetts law, the SJC is under no obligation to be guided by courts in other jurisdictions. But courts frequently engage in such cross-fertilization. In a legal system that gives great weight to precedent and often relies on reasoning by analogy, it is common for judges interpreting law in one state to consider the analysis used in parallel cases in other states. During the Desrosiers oral argument, Justice Barbara Lenk asked about lawsuits challenging pandemic orders in other states and wanted to know “what the results have been there.” Michael DeGrandis, the plaintiffs' attorney, called attention to the then-pending case in Michigan.

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The other fresh ruling comes from a federal court in Pennsylvania, which concluded that Governor Tom Wolf’s lockdown orders violated the rights of free speech and assembly shielded by the First Amendment, as well as the 14th Amendment’s guarantees of due process and equal protection. US District Judge William Stickman’s ruling is likely to be appealed, but his reasoning helps illuminate some of the issues in the SJC lawsuit.

The Massachusetts plaintiffs argue that Baker’s orders — even if allowed under the Civil Defense Act — are still fatally flawed because they lack due process. No business or church was afforded the opportunity to seek a waiver or exemption from the shutdown, and innumerable Massachusetts residents lost income or livelihood without a meaningful right of appeal. Moreover, the plaintiffs complained, many shutdown orders seemed arbitrary. Why, for example, were video arcades forced to stay closed months after casinos were allowed to reopen?

Baker, who is represented by Attorney General Maura Healey’s office, relied in part on Pennsylvania’s practice to justify his own extremely broad reading of the Massachusetts statute. So it’s noteworthy that the federal court in Pennsylvania ruled that Wolf had been “shockingly arbitrary” in his exercise of emergency powers. It acknowledged that Wolf had acted with the commendable motive of addressing a public health emergency.

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“But even in an emergency, the authority of government is not unfettered,” Stickman concluded. “The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble.”

Baker’s attorney maintained during oral argument last month that the SJC should “be giving broad deference to these decisions" by the governor, allowing him to “make [the] difficult line-drawing decisions” involved in the shutdown. With the disease still raging, some justices might be reluctant to undermine Baker’s handling of the pandemic. But the plaintiffs make a strong case that Baker has overreached. Even with the best intentions, governors can go too far, and it’s the job of the courts to rein them in. That’s true in Michigan and Pennsylvania. It’s true in Massachusetts, too.

Jeff Jacoby can be reached at jeff.jacoby@globe.com. Follow him on Twitter @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, visit bitly.com/Arguable.