Desrosiers v. Baker

CASE SUMMARY

In June 2020, NCLA filed a complaint in Massachusetts Superior Court on behalf of small business owners, entrepreneurs, church pastors, and the headmaster of a private school against Governor Baker’s unlawful Civil Defense Act State of Emergency. The lawsuit aims to restore constitutional governance to the Commonwealth by returning the power to protect the health and welfare of Massachusetts residents to local boards of health and the legislature, as required by law and the Massachusetts Constitution. In July, Justice Barbara A. Lenk transferred the case to Massachusetts’s highest court, the Supreme Judicial Court (SJC). The Supreme Judicial Court heard oral arguments on September 11, 2020.

COVID-19 is a serious matter of public health, but it is not a “civil defense” emergency. The Civil Defense Act is a Cold War-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and destruction associated with fires, floods, earthquakes, and similar cataclysms. It has never before been invoked in a health emergency. On the other hand, the legislature passed the Public Health Act explicitly to empower health authorities to suppress and prevent transmission of infectious diseases. Under the Public Health Act, principal responsibility for disease control lies with local boards of health, not with the Governor from his perch on Beacon Hill.

What started out as a disease crisis has been aggravated by new threats to the economic, social, educational, spiritual, and constitutional health of the Commonwealth. Governor Baker’s plan to reopen the economy does little to ease the burdens of these crises, and in many instances, his orders have made matters worse. We were asking the court to declare that the Civil Defense Act does not confer any authority upon Governor Baker during a pandemic and to declare his orders unenforceable.

On December 10, the Massachusetts Supreme Judicial Court rendered its decision upholding Governor Baker’s pandemic orders as consistent with the CDA. The order delivers a blow to the plaintiffs who include mom-and-pop businesses, two church pastors; the head of a religious academy, and others. The constitutional rights to due process of law and to be governed only by laws passed by the state legislature have been denied by the Court, causing incalculable harm to every Commonwealth resident.

NCLA points out that the SJC never explains why, ten months after the Civil Defense State of Emergency declaration, executive-made law is consistent with the Massachusetts Constitution or why it is even the swiftest, most desired outcome during a second pandemic wave. SJC didn’t properly employ established tools of statutory interpretation, finding instead that the CDA covers COVID-19 because of its severity rather than the nature of the threat. Relying heavily upon superseded U.S. Supreme Court precedent to justify its rejection of the plaintiffs’ First and Fourteenth Amendment claims, the decision is fundamentally flawed and ripe for review by the U.S. Supreme Court.

On May 10, 2021, NCLA filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the Justices to review two errors in the Massachusetts Supreme Judicial Court’s December 2020 ruling. First, NCLA argues that the court used an exceedingly lax standard of review when scrutinizing deprivations of the plaintiffs’ right to peaceably assemble, despite that the Governor’s Orders were discriminatory on their face. Second, NCLA argues that the SJC applied virtually no scrutiny regarding deprivations of the plaintiffs’ substantive due process rights, concluding that because substantive due process “is not a fundamental right,” the deprivations need only have a rational relationship to public health. The Supreme Court should take up this case to remind state courts that a health crisis does not empower governors to disregard the First and Fourteenth Amendments.

On June 10, 2021, Governor Baker filed a Waiver of Response, meaning that he will not respond to NCLA’s petition unless the Supreme Court orders him to respond.  The next day, two amici filed briefs in support of NCLA’s petition, Liberty Justice Center (Daniel R. Suhr, Counsel of Record) and civil rights attorney Ilya I. Feoktistov (Paul D. Kamenar, Counsel of Record).  NCLA and its clients appreciate amici’s interest in our case and in restoring the civil liberties of all Massachusetts residents.

On October 4, 2021, the U.S. Supreme Court declined to review the merits of an appeal in the case, without further comment.

 

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CASE STATUS: Active

CASE START DATE: June 1, 2020

DECIDING COURT: U.S. Supreme Court

ORIGINAL COURT: The Massachusetts Superior Court

CASE DOCUMENTS

June 11, 2021 | Brief of the Liberty Justice Center as Amicus Curiae in Support of Petitioners
June 11, 2021 | Brief of Ilya Feoktistov as Amicus Curiae in Support of the Petitioners
June 10, 2021 | Respondent's Waiver of Response in the U.S. Supreme Court
May 10, 2021 | Petition for a Writ of Certiorari in the U.S. Supreme Court
December 10, 2020 | Decision of the Massachusetts Supreme Judicial Court
November 28, 2020 | Second Supplemental Notice of Pertinent and Significant Authorities
October 6, 2020 | Supplemental Notice of Pertinent and Significant Authorities
September 11, 2020 | Oral Arguments
September 2, 2020 | Reply Brief of Petitioners in the Supreme Judicial Court for the Commonwealth of Massachusetts
Click here to read the full document.
August 28, 2020 | Brief of the Respondent in the Supreme Judicial Court for the Commonwealth of Massachusetts
Click here to read the full document.
August 3, 2020 | Brief of Plaintiff-Petitioners in the Supreme Judicial Court for the Commonwealth of Massachusetts
Click here to read the full document.
July 10, 2020 | Order of Reservation and Report
Click here to read the full document.
July 2, 2020 | Joint Petition to Transfer Case to Supreme Judicial Court for Suffolk County and to Reserve and Report Two Legal Issues to the Supreme Judicial Court for the Commonwealth
Click here to read the full document.
June 22, 2020 | Motion for Leave to File in Excess of Page Limit
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June 18, 2020 | Amended Complaint for Declaratory and Injunctive Relief
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June 1, 2020 | Complaint for Declaratory and Injunctive Relief
Click here to read the full document.

PRESS RELEASES

May 10, 2021 | NCLA Petitions Supreme Court to Hear Case on Gov. Baker’s Pandemic Orders Barring Free Assembly

Washington, DC (May 10, 2021) – Despite the greatly improved disease and risk environment since the COVID-19 national emergency was declared fourteen months ago, Massachusetts Governor Charlie Baker’s state of emergency remains in effect today. This afternoon the New Civil Liberties Alliance filed a petition for a writ of certiorari with the U.S. Supreme Court in Dawn Desrosiers, et al. v. Governor Charles D. Baker, asking the Justices to review the Massachusetts Supreme Judicial Court’s December 2020 ruling that decided the Governor’s restrictions are reasonable and do not violate the plaintiffs’ federal constitutional rights.

NCLA, a nonpartisan, nonprofit civil rights group, challenged Governor Baker’s Civil Defense State of Emergency declaration and his ensuing emergency orders last year in Massachusetts’s highest court. That court mistakenly held that the First Amendment freedom of assembly claims should be scrutinized under the relaxed standard applicable to time, place, and manner restrictions. It further erred by holding that the restrictions could pass muster under the Due Process Clause so long as they were reasonably related to a valid state interest. Closer scrutiny than that is warranted when the restrictions on personal liberty are so extreme and have been imposed by order of a single executive-branch official rather than a legislature.

NCLA represents local entrepreneurs, church pastors, and a private school headmaster, who are opposed to the Commonwealth’s arbitrary and discriminatory restrictions on their rights to peaceably assemble and to receive due process. Baker has issued 67 executive orders related to the pandemic, some 40 of which implicate the assembly or due process rights of NCLA’s clients.

Governor Baker seized unprecedented executive and legislative authority when he issued his Emergency Declaration. Under the state of emergency, the Governor arbitrarily declares—without a hearing or other form of due process—which “essential” businesses may remain open and which “non-essential” businesses must close. Most of Baker’s orders from the last year have curtailed freedoms by banning economic, religious, educational, and cultural assembly in some form or fashion. But a health crisis does not empower the Governor to disregard the First and Fourteenth Amendments.

Petitioners assert that the severe restrictions on their civil liberties violate their due process rights. Governor Baker’s capacity limitations, curfews, and other restrictions on gatherings in private homes underscore the need for judicial oversight of executive decrees, even during a pandemic. The Supreme Court has rarely seen such a brazen invasion of the sanctity of private homes and interference with personal relationships.

NCLA hopes the Supreme Court will take up this case because it presents a unique opportunity to remind state and federal courts that constitutional rights like the freedom peaceably to assemble remain relevant in times of crisis. Review is warranted to provide lower courts with much-needed direction regarding the proper standards for reviewing constitutional challenges to severe restrictions on civil liberties.

NCLA released the following statement:

“If the Governor can really choose which assemblies to ban as long as his stated purpose is neutral, and if he can choose which jobs or activities to ban just because it has a reasonable relationship to a government interest, no civil liberties are safe in this pandemic or the next. The Constitution does not lose its vitality just because there is a crisis; in fact, that’s when we need it most. The Supreme Court should review the Desrosiers decision and reaffirm that a crisis cannot justify abandoning civil liberties or constitutional principles.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

December 10, 2020 | Mass. High Court Ruling Disregards Civil Liberties, Gives Governor Virtual Free Pass to Violate Them During a Civil Defense State of Emergency

Washington, DC (December 10, 2020) – The Massachusetts Supreme Judicial Court rendered its decision in the Desrosiers v. Baker case this morning upholding Governor Baker’s pandemic orders as consistent with the Civil Defense Act (CDA). The order delivers a blow to the plaintiffs who include mom-and-pop businesses, two church pastors; the head of a religious academy, and others. The constitutional rights to due process of law and to be governed only by laws passed by the state legislature have been denied by the Court, causing incalculable harm to every Commonwealth resident.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, points to numerous flaws in the decision and questions whether the Commonwealth still enjoys a republican form of government after this ruling. If the Massachusetts and United States Constitutions can be suspended in whole or in part during times of crisis, permitting a governor to make law by decree and dispense with the law as he sees fit, the government guaranteed to Massachusetts’ residents in Article IV of the United States Constitution is gone.

Gov. Baker’s efforts to classify some businesses as essential and others as non-essential violate the longstanding rule against “dispensing with” the law. Legislatures may “suspend” the law from time to time as it applies to everyone, but they may not—and certainly, the governor has no power to—apply the laws to some people but not others. The notion that the governor may do so without hearings or due process is absurd and dangerous.

SJC says that the CDA is important to allow the Governor to take swift, coordinated efforts to protect public health. But the SJC never explains why, ten months after the Civil Defense State of Emergency declaration, executive-made law is consistent with the Massachusetts Constitution or why it is even the swiftest, most desired outcome during a second pandemic wave. SJC didn’t properly employ established tools of statutory interpretation, finding instead that the CDA covers COVID-19 because of its severity rather than the nature of the threat. Relying heavily upon superseded U.S. Supreme Court precedent to justify its rejection of the plaintiffs’ First and Fourteenth Amendment claims, the decision is fundamentally flawed and ripe for review by the U.S. Supreme Court.

NCLA released the following statements:

“Massachusetts has now shepherded the liberty-loving principles of the American Revolution from cradle to grave. John Adams must be spinning in his tomb at the news that the colony that he and his fellow patriots fought so hard to liberate from arbitrary royal decrees, and establish as a republic grounded in a government of laws and the consent of the governed, has become what Adams feared most.”

— Michael P. DeGrandis, NCLA Senior Litigation Counsel

“Among other problems, it defies belief that the Massachusetts Supreme Judicial Court would rely so heavily in its decision today on a U.S. Supreme Court opinion that was superseded last month. What are the justices thinking? South Bay is no longer the law of the land. NCLA will closely examine the strongest grounds for appeal of this decision, which is remarkable in its cavalier disregard for Americans’ civil liberties.”

— Mark Chenoweth, NCLA Executive Director and General Counsel

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

December 3, 2020 | NCLA’s Latest Case Video Explains Lawsuit Against Governor Baker’s Civil Defense Emergency Orders

Washington, DC (December 3, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today released its latest case video highlighting the stories of Petitioners in Massachusetts in the case of Desrosiers v. Baker—which has been pending in the Massachusetts Supreme Judicial Court since oral argument on September 11. Dawn Desrosiers of Hubbardston, Tom Fallon of Billerica, and Susan Kupelian of Lexington, featured in the video, joined with other business owners, church pastors, and the headmaster of a private school in a lawsuit against the Executive Orders Governor Baker has issued under the Civil Defense Act State of Emergency, which he unlawfully declared in response to the COVID-19 pandemic.

COVID-19 is a serious public health crisis, but it is not a “civil defense” emergency. NCLA is asking the Massachusetts Supreme Judicial Court to declare that the Civil Defense Act does not confer any authority upon Governor Baker during a pandemic and to decide that his orders violate the separation of powers in the state constitution. NCLA also argues that Gov. Baker’s efforts to classify some businesses as essential and other as non-essential violates the longstanding rule against “dispensing with” the law. Legislatures may “suspend” the law from time to time as it applies to everyone, but they may not—and certainly the governor has no power to—apply the laws to some people but not others.

If this lawsuit is successful, local boards of health will once again be able to establish balanced strategies befitting their communities to reinvigorate the social, economic, educational, and spiritual dimensions of civic life, while still preventing the spread of COVID-19. The legislature would then be free to take up any issue requiring broader applicability to the Commonwealth, thereby protecting the health and welfare of all Massachusetts residents.

Excerpts from the video:

“Many businesses have been destroyed in Massachusetts and aren’t coming back. People don’t have the resources to sit idly by for months at a time. And what Governor Baker’s orders have done is: he’s decided which businesses may open—the essential businesses; which businesses must close—non-essential. It’s profoundly unfair because there’s no due process associated with these liberty and property deprivations.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA  

“When Baker declared the state of emergency to my business and shut me down, I was devastated. How can he tell me I cannot get up and go to work? I’ve been working since I was 13 years old.”

— Dawn Desrosiers, PetitionerHair 4 You

“I don’t know if my business will bounce back. I do know that it’s been knocked out.”

— Tom Fallon, PetitionerUnion Street Boxing 

“I could not believe that as a law-abiding citizen in this state, I was being told to shut down my business through no fault of my own.”

— Susan Kupelian, PetitionerNaz Kupelian Salon 

Read full case summary here. 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

December 1, 2020 | NCLA Alerts Mass. High Court to US Supreme Court Covid-19 Ruling Blocking Similar NY Exec. Order

Washington, DC (December 1, 2020) – The New Civil Liberties Alliance has filed a Second Supplemental Notice of Pertinent and Significant Authorities on behalf of the Petitioners in the matter of Desrosiers v. Baker currently awaiting a decision in the Massachusetts Supreme Judicial Court (SJC). The Notice advised the SJC of the Thanksgiving eve emergency injunction issued in the U.S. Supreme Court case, Roman Catholic Diocese of Brooklyn v. Cuomo, blocking New York Governor Andrew Cuomo from imposing strict numerical occupancy limits on places of worship. Catholic Diocese of Brooklyn supersedes Supreme Court precedent Gov. Baker previously cited in his defense and Justices of the Massachusetts SJC raised at oral argument.

Massachusetts Governor Charlie Baker imposed a Civil Defense State of Emergency and issued at least 55 COVID-19 executive orders since March that shut down the businesses, churches, and the private school that are suing Baker in the Desrosiers case.

The Supreme Court declined to defer to New York Governor Andrew Cuomo’s assessment of the restrictions necessary to protect public health where the restrictions burdened First Amendment rights. The Supreme Court ruled that Governor Cuomo’s executive order was unconstitutional because the order treats places of worship more harshly than secular businesses with respect to occupancy limitations. NCLA is asking the SJC to follow the Supreme Court’s new lead in Diocese of Brooklyn by exercising its constitutional prerogative to say what the law is and define the parameters of constitutional authority, without deferring to Gov. Baker’s interpretation.

The Supreme Court’s decision in Diocese of Brooklyn supersedes its May, 2020 decision in South Bay United Pentecostal Church v. Newsome. By superseding South Bay, the decision and its concurring opinions are relevant to at least two issues raised by the Justices and parties in Desrosiers v. Baker.

First, the Diocese of Brooklyn decision relates to the Desrosiers Petitioners’ First Amendment peaceful assembly claims and their claims that Governor Baker’s Civil Defense State of Emergency COVID-19 orders arbitrarily classify Petitioners between and among their businesses, churches, and school. These arbitrary classifications manifest unlawful dispensing with the law, and not suspension of the law as permitted in rare circumstances by the Civil Defense Act. The Supreme Court’s First Amendment analysis employed strict scrutiny because “[g]overnment is not free to disregard the First Amendment in times of crisis.”

Second, at oral argument and in his briefing, Governor Baker asked the SJC to grant “broad deference” to his interpretation of Massachusetts law and the scope and nature of gubernatorial power. Justice Gorsuch’s concurring opinion flatly rejected such a notion: “[Courts] may not shelter in place when the Constitution is under attack.” Justice Gorsuch explained that Chief Justice Robert’s South Bay concurrence “expired according to its own terms,” but regardless, “[e]ven if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

NCLA released the following statement: 

“As we near the tenth month of Governor Baker’s Civil Defense State of Emergency, more and more state and federal courts are declaring gubernatorial decrees unconstitutional. The United States Supreme Court is a welcome addition to that growing list. The Massachusetts Supreme Judicial Court should also recognize that free people don’t socially distance themselves from their civil liberties in times of crisis.”

Michael P. DeGrandis, NCLA Senior Litigation Counsel 

For more information visit the case page here

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

November 3, 2020 | NCLA Clears Way for Mass. Small-Biz Owners to Receive COVID-19 Relief Grants

Washington, DC (November 3, 2020) – Thanks to the swift action of the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, small businesses in Massachusetts still struggling due to COVID-19 shutdowns and restrictions can now apply for a relief grant—even if the applicant is party to litigation involving the Commonwealth, city or town in which it operates.

Massachusetts Growth Capital Corporation (MGCC), established by the Massachusetts legislature in 2010 to create and preserve jobs and small businesses, administers a $50.8 million grant program to assist small businesses struggling during the COVID-19 pandemic. But MGCC had been disqualifying the small-business Petitioners of the Desrosiers v. Baker case because they are currently challenging Governor Baker’s Civil Defense State of Emergency and his COVID-19 Executive Orders in the Massachusetts Supreme Judicial Court.

Michael DeGrandis, NCLA Senior Litigation Counsel and lead counsel in the Desrosiers case, immediately contacted the Attorney General’s Office and the MGCC, objecting to a policy that punished small business owners simply for seeking to vindicate their civil liberties in court. The arbitrary policy prohibited all litigation involving the government—even where the applicant was on the same side as the Commonwealth or municipality.

The Petitioners, which include small business owners, church pastors, and the headmaster of a private school, assert (among other things) that Governor Baker’s declaration of a Civil Defense State of Emergency and his COVID-19 Executive Orders violate the separation of powers in the Massachusetts Declaration of Rights.

MGCC quickly agreed to remove the litigation prohibition, and it now encourages all small businesses to apply for the grant funds, especially those “whose owners are women, minorities, veterans, members of other underrepresented groups, who are focused on serving the Gateway Cities of Massachusetts, and those most negatively impacted by the COVID-19 pandemic. Preference will also be given to applicants that have not been able to receive aid from other federal programs related to COVID-19.”

Applications opened October 22, 2020 and will close on November 12, 2020. All applicants previously disqualified due to the litigation prohibition should reapply before the November 12th deadline.

NCLA released the following statement: 

“The Petitioners are courageous people who have taken a principled stand on the side of the Constitution. It’s essential that NCLA protects their rights to have their case heard in court and to petition the government for a redress of their grievances, without fear of reprisal. I am pleased that MGCC agreed to remove its ban on litigation involving the Commonwealth and expand access to grant funds to our clients and all other Massachusetts small businesses in the same situation.”

— Michael DeGrandis, NCLA Senior Litigation Counsel 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

October 7, 2020 | Fate of Gov. Baker’s COVID-19 Orders Could Be Influenced by Michigan, Pennsylvania Court Decisions

Washington, DC (October 7, 2020) – A recent Michigan Supreme Court decision striking down months of COVID-19 executive orders by Governor Gretchen Whitmer has prompted the New Civil Liberties Alliance to file a Supplemental Notice of Pertinent and Significant Authorities in the Massachusetts Supreme Judicial Court in the matter of Desrosiers v. Baker.

Massachusetts’s highest court heard oral arguments on September 11, 2020, at which time the Justices inquired regarding other governors’ declarations of states of emergency and judicial interpretations of their COVID-19 orders. The Notice alerts the Justices to two similar cases in other states where governors’ pandemic orders were challenged—and nullified by the courts. NCLA, a nonpartisan, nonprofit civil rights group, believes that these judicial decisions could persuade the Massachusetts SJC in deciding the Desrosiers v. Baker matter.

Midwest Institute of Health, PLLC v. Whitmer was pending in the Michigan Supreme Court and County of Butler v. Wolf was pending in the Western District of Pennsylvania at the time of oral argument, but they have now been decided against both governors.

In Midwest Institute of Health, the Michigan Supreme Court held that Governor Whitmer’s COVID-19 orders violated the separation of powers and nondelegation clauses of the Michigan Constitution. The Supreme Court cited a Massachusetts Supreme Judicial Court decision as standing for the proposition that an emergency does “not abrogate the Constitution.” Declaring Governor Whitmer’s orders unconstitutional, the Justices concluded that a governor may not “possess[] free rein to exercise a substantial part of our state and local legislative authority—including police powers—for an indefinite period of time.”

In County of Butler v. Wolf, the district court held that Pennsylvania Governor Wolf’s COVID-19 orders violated First Amendment rights to assembly and speech and Fourteenth Amendment rights to substantive due process and equal protection. The district court believed Governor Wolf’s orders were well-intentioned, but good intentions are not a constitutional standard. “Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good—especially in a time of emergency.” Declaring Governor Wolf’s orders unconstitutional, the district court concluded that “[t]he Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.”

The petitioners in Desrosiers v. Baker, which include business owners, church pastors, and the headmaster of a private school, are asking the Massachusetts SJC to consider: (1) whether the 1950’s-era Civil Defense Act provides authority for Governor Baker to declare a state of emergency and if his issuance of the emergency orders violates the separation of powers; and (2) whether the emergency orders violate the plaintiffs’ rights to due process and free assembly. These issues are akin to the ones Governors Whitmer and Wolf lost recently.

NCLA released the following statement:  

“With no end in sight to the Civil Defense State of Emergency nor indication that Governor Baker will be loosening his grip on the legislature’s police power, I hope the Supreme Judicial Court will take notice of an emerging trend across the country. More and more courts are defending state and federal constitutions and restoring civil liberties lost under the guise of ‘temporary’ emergency gubernatorial action. This is a heartening trend that the SJC could—and should—further in Massachusetts.”

– Michael P. DeGrandis, NCLA Senior Litigation Counsel

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

September 3, 2020 | NCLA Brief to Mass. Supreme Judicial Court Rebuts Governor Baker’s Defenses

Washington, DC (September 3, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a reply brief shortly before midnight refuting Governor Baker’s defense of his declaration of a Civil Defense Act State of Emergency to address the COVID-19 health crisis. NCLA asked the Massachusetts Supreme Judicial Court to declare Governor Baker’s COVID-19 orders unconstitutional. The plaintiffs, consisting of business owners, businesses, schools, and churches across the state, contend that Gov. Baker cannot define the limits of his own authority or use a pandemic to set himself up as a single-branch lawmaker. A chief executive also may not pick winners and losers by dispensing with the law to benefit certain groups and disfavor others. Further, Governor Baker’s interpretation of the Civil Defense Act (CDA) disregards the Public Health Act.

The Massachusetts legislature adopted the Public Health Act over a century ago to empower health authorities to control and prevent transmission of infectious diseases dangerous to public health. It never intended for the CDA to supersede it.  The CDA is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest and destruction associated with natural disasters such as fires and earthquakes. In his response brief filed last week, Governor Baker asserts that the phrase “other natural causes” under the CDA effectively means “all natural causes”—not so.

NCLA points out that neither the Massachusetts Constitution nor the CDA authorizes the governor to enact, amend or dispense with the law under any circumstance. His authority is limited to implementing the details of legislative policy. But many of the governor’s COVID-19 orders cross the line—instead of effectuating legislative policy, he is enacting his own laws.

Governor Baker offers no authority to support his assertion that a pandemic is a Civil Defense Emergency, and his assertion that he may define the limits of his own authority due to the pandemic is counter constitutional. The Massachusetts Supreme Judicial Court cannot defer to the Governor’s definition of the scope of his own authority—which he claims to be “any and all authority over persons and property[.]”

NCLA released the following statement: 

“Governor Baker’s defenses offer the Justices absolutely no limiting principle as to the scope of his power. If every natural disaster and every man-made disaster justify a Civil Defense Act state of emergency, when can’tthe governor rule Massachusetts by decree? It’s time to restore the legislature’s lawmaking authority and return democracy to the Commonwealth.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA 

ABOUT NCLA  

NCLA is a nonpartisan, nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

August 4, 2020 | NCLA Brief Tells Mass. Supreme Judicial Court that Gov. Baker’s Covid-19 Orders Violate Constitution

Washington, DC (August 4, 2020) – The uncertainty of indefinite shutdowns and shifting reopening phases are causing hardship to people across Massachusetts. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed an opening brief on behalf of plaintiff-petitioners in Dawn Desrosiers, et al. v. Governor Charles D. Baker. The plaintiff-petitioners which include business owners, church pastors, and the headmaster of a private school, have bypassed state trial court to ask the state’s highest court to decide directly whether the governor’s March 10, 2020 Civil Defense State of Emergency declaration and the ensuing emergency orders responding to the coronavirus pandemic are lawful exercises of gubernatorial authority.

On July 10, 2020, Justice Barbara A. Lenk of the Supreme Judicial Court entered an order to “reserve and report the matter to the full court for decision.” Justice Lenk agreed with the parties that promptly obtaining a decision by Massachusetts’s highest court is in the public interest. Such an approach will provide clarity regarding the validity of Governor Baker’s decisions more quickly. A major issue is his reliance on the Civil Defense Act, rather than the Public Health Act, to impose his unilateral orders to close and restrict access to businesses, churches, schools, and limit private and some public gatherings.

The Supreme Judicial Court will consider two questions: (1) whether the Civil Defense Act provides authority for Governor Baker to declare a state of emergency and if his issuance of the emergency orders violates the separation of powers; and (2) whether the emergency orders violate the plaintiffs’ constitutional rights to due process and free assembly.

NCLA argues that Governor Baker has arbitrarily declared which businesses, organizations, and activities are “essential,” and banned others by categorizing them into his unilaterally defined reopening phases. The governor has also indefinitely closed some businesses, making their operations contingent upon a treatment or vaccine for the coronavirus—events over which those affected have no control. Even while he has allowed certain businesses to reopen, he continues to exercise the authority he usurped from the legislature to pursue his own policies on conditions and restrictions to business operations.

The plaintiffs have argued that the governor’s orders are invalid because the COVID-19 pandemic is not a “civil defense emergency” and does not afford the governor sweeping emergency powers to mitigate the spread of infectious diseases. The Civil Defense Act is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest and destruction associated with natural disasters such as fire and earthquakes.

The Massachusetts legislature, adopted the Public Health Act to empower health authorities to control and prevent transmission of infectious diseases dangerous to public health. It never intended for the Civil Defense Act to supersede it. Under the Public Health Act, principal responsibility for disease control lies with local boards of health and healthcare officials. The governor does not have the lawmaking prerogative to legislate the police power in either the Public Health Act or the Civil Defense Act.

Furthermore, even if the CDA allows Gov. Baker to suspend some laws, the Massachusetts Declaration of Rights does not allow him to dispenseany laws, which is what happens when he suspends the application of laws to some citizens but not others or comes up with new rules that only apply to certain groups that he has identified. Nor does the constitution permit him to deny people’s civil liberties without a hearing and adequate due process.

NCLA released the following statements: 

“The plaintiffs are conscientious citizens and good neighbors. They have been doing their part to stop the spread of COVID-19, and they will continue to do so. But they refuse to sit idly by and watch a health crisis worsen into a socio-economic crisis caused by Governor Baker’s unconstitutional law-by-decree regime. A return to constitutional order will restore health to our communities—physical, social, and economic—and ensure that the concerns for the welfare of all will be addressed by the legislature, as the Constitution intended.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA 

“No governor is above the law. They are instead required to faithfully carry out the law as written and stay within the confines of their constitutional authority. The coronavirus simply cannot become a vehicle by which to weaken and undermine our Republican form of government. Protecting our civil liberties and freedoms is critical to the long-term health of our country.”

— Harriet Hageman, Senior Litigation Counsel, NCLA 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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July 2, 2020 | NCLA, Gov. Baker File Petition Asking Mass. Supreme Judicial Court to Hear Civil Defense Act Case

Washington, DC (July 2, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a joint petition with Governor Charlie Baker and the Attorney General’s Office to transfer the case of Dawn Desrosiers, et al. v. Governor Charles D. Baker from Worcester Superior Court to the Supreme Judicial Court. The petition asks the Court to decide whether Governor Baker’s March 10, 2020 Civil Defense State of Emergency declaration and the ensuing emergency orders responding to the coronavirus pandemic are lawful exercises of gubernatorial authority.

At issue is whether the Civil Defense Act provides authority for Governor Baker to declare a state of emergency and whether issuance of emergency orders violates the separation of powers. The plaintiffs, which include local entrepreneurs, church pastors, and the headmaster of a private school, contend that Governor Baker has arbitrarily categorized some businesses, organizations, and activities as “essential,” and banned others by sorting them into reopening phases. They also argue that the emergency orders violate their constitutional rights to due process and free assembly. Baker has closed schools and daycare facilities, and he has limited private gatherings in churches, beaches, and parks.

The Governor’s orders are invalid because the COVID-19 pandemic is not a “civil defense emergency.” The Civil Defense Act is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest associated with natural disasters. It has never before been invoked for a health emergency. On the other hand, the legislature passed the Public Health Act explicitly to empower health authorities to control and prevent transmission of infectious diseases dangerous to public health. Under the Public Health Act, principal responsibility for disease control lies with local boards of health, not with the Governor.

There are at least six other cases currently pending in state and federal courts challenging Governor Baker’s COVID-19 pandemic response. Given the nature of the current pandemic and the rise in COVID-19 cases in other states, a decision by Massachusetts’s highest court is in the public interest because it will provide clarity regarding the validity of the process Governor Baker has used to address the health crisis.

NCLA released the following statement:

“This joint petition is an encouraging development. By finding common ground with the Attorney General’s office regarding the nature of our dispute, we were able to come to an agreement with Governor Baker that our lawsuit presents fundamental questions of constitutional law and that the Supreme Judicial Court should hear the case as soon as possible. When it does, we are confident in our chances for success.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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June 1, 2020 | NCLA ‘Bay Staters’ Lawsuit Contests Validity of Gov. Baker’s Civil Defense State of Emergency

Washington, DC (June 1, 2020) – In response to the serious health threat posed by the COVID-19 pandemic, Massachusetts Governor Charlie Baker declared a state of emergency under the Massachusetts Civil Defense Act to justify imposing draconian, “one-size-fits-all” measures across the Commonwealth. Under his Civil Defense State of Emergency, the Governor has arbitrarily declared which businesses are “essential” and closed those he determined were not. In addition, he has closed schools and daycare facilities, and he has limited private gatherings in churches, beaches, and parks. Because he issued his orders under a Civil Defense State of Emergency, disobedience is a criminal act.

Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group filed a complaint in Massachusetts Superior Court representing local entrepreneurs, church pastors, and the headmaster of a private school against Governor Baker’s unlawful orders. The lawsuit aims to return constitutional governance to the Commonwealth by overturning the Civil Defense State of Emergency, which Baker improperly declared.

The Governor’s orders are invalid because the COVID-19 pandemic is not a “civil defense emergency.” The Civil Defense Act is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest associated with natural disasters. It has never before been invoked for a health emergency. On the other hand, the legislature passed the Public Health Act explicitly to empower proper authorities to control and prevent transmission of infectious diseases dangerous to public health. Under the Public Health Act, principal responsibility for disease control lies with local boards of health, not with the Governor from his perch on Beacon Hill.

What started out as a disease crisis has been aggravated by new threats to the economic, social, spiritual, and constitutional health of the Commonwealth. Governor Baker’s plan to reopen the economy does little to ease the burdens of these crises. We are asking the court to declare that the Civil Defense Act does not confer any authority upon Governor Baker during a pandemic and to declare his orders null and void. This ruling would permit local boards of health to establish strategies befitting their communities to reopen businesses while still preventing the spread of COVID-19. The legislature could then take up any issue requiring broader applicability to the Commonwealth.

NCLA released the following statements:

“By applying the Civil Defense Act instead of the Public Health Act, the governor has seized extra power to which he is not entitled. Fear of a deadly virus is not a reason to abandon constitutional governance. Governor Baker doesn’t have the power to make law by royal decree—lawmaking is the legislature’s exclusive responsibility. Bay Staters can best protect each other’s lives and livelihoods through solutions passed by their legislators—the elected officials most familiar with the needs of the local communities they serve.”

–Michael P. DeGrandis, Senior Litigation Counsel, NCLA

“I don’t think the Governor knows the chaos that his arbitrary orders are creating. He is picking the winners and the losers of this pandemic crisis by telling us how to run our businesses. It’s time to return the business decision-making back to the business owners.”

–Robert Walker, Plaintiff, Apex Entertainment LLC & Devens Common Conference Center LLC

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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BLOGS

March 18, 2021 | Flattening the Curve on Our Civil Liberties: Are Courts Social Distancing from the Constitution? | Michael DeGrandis

We just observed the first anniversary of “15 days to flatten the curve.” Since then, we’ve learned at least two important lessons. First, there’s no quick fix to flattening an infection curve. Second, the virus may be more resilient than our civil liberties. When all three branches of government are derelict in their duties to protect and defend federal and state constitutions, the curve on our civil liberties gets flattened, not the virus.

COVID-19 is a highly contagious disease that is potentially deadly to the elderly and people with underlying conditions. One year ago, and at times between then and now, the virus threatened to overwhelm the healthcare system. Many states scrambled to find more hospital beds, ventilators, doctors, and nurses. Even personal protective equipment for healthcare professionals and sanitizer were in short supply. Precautionary measures, such as canceling large social gatherings, postponing unnecessary travel, and mask-wearing and physical distancing in public, made sense.

But very few of these public health measures were enacted by state legislatures. Governors took over and made law by executive decree—many of which were enforced with criminal penalties. Most state legislatures were silent on governors’ open and notorious usurpation of their exclusive police power. So, much of the criticism of governments’ handling of the pandemic has fallen on governors for overreaching and legislatures for acquiescing to executive rule.

The courts, however, shouldn’t get a free pass. The judiciary’s role is to say what the law is and to protect and defend federal and state constitutions. Governors can’t permit some people to earn a living while forcing others to collect unemployment. Governors can’t prohibit us from hosting Thanksgiving dinner for more than 10 people, or from serving dessert after 9:30 p.m. Governors can’t open nail salons and casinos while leaving tanning salons and arcades closed. These examples may seem absurd, but they are shockingly commonplace across the country. And despite that they are barefaced affronts to constitutional order and civil liberties, very few courts have reined in these abuses of power.

There have been many court cases challenging COVID-19 executive orders since March 2020. Six cases best summarize both judicial retreat and engagement in the age of executive law-by-decree. While the results are mixed, there is hope on the horizon that courts may be more willing to buoy the Constitution and civil liberties in the second year of the pandemic, than they were in the first.

The Dynamic of the Police Power, Separation of Powers, and Nondelegation Doctrine

To set the stage for the COVID-19 cases, it’s important to understand the constitutional backdrop to all lawsuits against gubernatorial COVID-19 orders. It starts (as it should) with the United States Constitution. The Tenth Amendment states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, since the police power is not an enumerated federal power, states have retained the authority to wield it.

The police power is the authority to regulate the health, safety, welfare, and morals of a community. This definition is consistent across the country. The police power is inherently legislative because it necessarily involves policy making. Examples of the police power include state laws that require clean restaurants, establish the minimum age for a driver’s learning permit, and set the hours of operation for liquor stores. The role of a governor is to implement and enforce these laws. Since COVID-19 is a matter of public health, state legislatures have the primary responsibility for protecting their residents from unreasonable risk of contracting the disease.

Separation of powers is fundamental to constitutional governance. It is an essential bulwark for the preservation of liberty. Separation of powers is sometimes explicit in constitutions, like California’s, or implicit, like Alaska’s. Regardless, every state recognizes that the legislative, executive, and judicial branches have constitutionally vested powers unique to their place in government. When one branch asserts the authority of another, that usurpation violates the separation of powers and its actions are constitutionally invalid. Where governors have acted without authority to make policy or suspend or alter the law’s applicability, they have violated their state’s constitution because they are exercising the legislative police power.

Relatedly, the nondelegation doctrine is designed to prevent a branch from voluntarily surrendering its constitutionally vested authority to another branch. Some state legislatures have divested themselves of their policy and lawmaking authority by assigning it to their governors in broad emergency statutes. Just as a governor cannot delegate authority over state law enforcement agencies (a quintessential executive function) to the legislature, a legislature cannot delegate authority to regulate the health, safety, welfare, or morals of the state to a governor.

Gubernatorial overreach and legislative acquiescence are unnecessary to protect the public from COVID-19. In a properly ordered constitutional system, the legislature has tremendous power to protect the public from disease. The key case on this point is Jacobson v. Massachusetts, 197 U.S. 11 (1905). Massachusetts passed a law that required local boards of health to monitor their communities for the spread of smallpox. If they noticed a spike in infections, local boards could petition the Department of Public Health to decide whether vaccinations should be required in the endangered community. In 1905, Cambridge, Massachusetts, posed a serious smallpox threat, so the residents were ordered to be vaccinated. The Supreme Court held that the legislative police power is broad, and that the legislature validly exercised its authority to protect Massachusetts from a disease dangerous to the public health. The Department of Public Health and the Cambridge Board of Health were merely executing the policy established by the legislature since they were only implementing the legislature’s will as described in the statute. Jacobson demonstrates that the branches of state government don’t have to violate the separation of powers or nondelegation doctrine to protect the public health, even in times of crisis.

Constitutional Kabuki Theater

Nevertheless, some courts have chosen not to correct obvious COVID-19 executive branch violations of federal and state constitutions. Two cases stand out as typical of this judicial complaisance: South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) and Desrosiers v. Baker, 486 Mass. 369 (2020).

The Supreme Court decided South Bay Pentecostal in May 2020. The Court held that California Governor Newsom’s executive order limiting church attendance to 25% of the building capacity up to a maximum of 100 attendees, regardless of building size, didn’t violate worshipers’ right to free exercise as guaranteed by the First Amendment. This case is important because Chief Justice Roberts’s concurring opinion reads like a defense of the Court’s decision not to subject executive orders to rigorous constitutional analysis. The Chief Justice stated that where a virus has no effective treatment, no cure, and no vaccine, medical and scientific uncertainty “is a dynamic and fact-intensive matter subject to reasonable disagreement.” He concluded that state officials’ “latitude must be especially broad” in these circumstances, and that officials “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

The Massachusetts Supreme Judicial Court decided Desrosiers in December 2020. The Court held that Massachusetts Governor Baker’s COVID-19 orders did not violate the Massachusetts Constitution’s separation of powers, he did not unconstitutionally “dispense with the law,” and his orders did not violate rights to due process or peaceable assembly. Governor Baker claimed authority to issue his COVID-19 orders pursuant to an emergency statute known as the Civil Defense Act, which prior to COVID-19, had only been used for preparation for war and imminent massive storms. Beyond the court’s unreasonable statutory interpretation regarding the Act’s applicability to pandemics, the court went to great lengths to praise the Governor’s performance in the pandemic and his policies that, in the court’s view, advanced a compelling governmental interest in public health. It concluded that since the legislature wanted the Governor to have plenary authority over suspending the law during a civil defense emergency, the COVID-19 orders don’t violate the separation of powers.

These two cases illustrate the circumstances in which courts might be reluctant to defend the Constitution. In the early stages of a pandemic where there is little information about the nature or severity of a virus, courts might choose to defer to the elected branches over vindicating civil liberties. Also, where a governor may have statutory authority to issue executive orders in emergencies—even emergencies dissimilar to the one at hand—a court might rule on the side of expediency, rather than a constitutions’ structural protections of civil liberties.

There’s Hope for the Future

It’s not all bad news. Some courts have risen to the occasion, and four cases stand out as typical of the wider trend toward defending civil liberties: McCarthy v. Baker, No. 20-10701 (D. Mass. May 7, 2020), County of Butler v. Wolf, No. 2:20-cv-677 (W.D. Penn. Sept. 14, 2020), Midwest Institute of Health v. Whitmer, No. 161492 (Mich. Oct. 2, 2020), and Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020).

In McCarthy, a federal court held that Governor Baker’s closure of Massachusetts gun shops because they were not “essential” businesses, violated the Second Amendment. The gun shops had to take measures to prevent the spread of the virus, but they couldn’t be shut down simply because the Governor believed gun shops weren’t essential.

In Butler County, a federal court explained that Pennsylvania Governor Wolf’s COVID-19 orders may have been well-intentioned, but “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge.” The court held that COVID-19 orders that restrict First and Fourteenth Amendment rights by setting numerical limits on gatherings and closing “non-life-sustaining” businesses are unconstitutional. “In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions—while expedient in the face of an emergency situation—may persist long after immediate danger has passed.”

In Midwest Institute of Health, the Michigan Supreme Court held that Governor Whitmer did not have authority under the Emergency Management Act to renew her declaration of a state of emergency after its 28-day expiration. Moreover, a second statute, the Emergency Powers of the Governor Act unconstitutionally delegated the legislature’s plenary police power to the Governor. Addressing the nondelegation doctrine, the court explained that “[o]ne of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.” So, there was no constitutional basis for the Governor’s COVID-19 orders.

In Diocese of Brooklyn, the United States Supreme Court superseded its decision in South Bay United Pentecostal Church v. Newsom. The Court held that New York Governor Cuomo’s occupancy restrictions on places of worship violated the First Amendment by treating houses of worship more harshly than secular facilities. Justice Gorsuch’s concurring opinion is unequivocal: “[The Supreme Court] may not shelter in place when the Constitution is under attack. Things never go well when we do.” Justice Gorsuch flatly rejected the notion that courts should defer to elected branches during the pandemic emergency, and certainly not 10 months into the emergency. “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” He also insisted that courts must stop citing South Bay Pentecostal and start defending civil liberties. Nevertheless, courts persist in citing South Bay Pentecostal instead of Diocese of Brooklyn, including the Massachusetts Supreme Judicial Court in Desrosiers v. Baker.

It may appear that courts are more willing to defend the Constitution where the issue is discrete, such as the Second Amendment in McCarthy or the First Amendment in Diocese of Brooklyn. But Butler County and Midwest Institute of Health demonstrate that some judges are willing to take a wide-angle view of the separation of powers and assignment of the legislative police power to the executive branch. The dividing line could simply be time—one year into the pandemic, it’s becoming clearer to judges that governors aren’t in any rush to relinquish their emergency power. But the difference could simply be the individual predisposition of judges. Some know that the best way to simultaneously protect the health, safety, and welfare for all people is to defend the Constitution. Others may be more deferential to those holding elected office.

Conclusion

Judicial intervention during emergencies may be inconvenient, but it’s the courts’ constitutional duty. Constitutional order is most needed in crisis because it’s in heady times that a fearful population becomes reactive to danger and complacent in the denial of civil liberties—whether the denial is personal or felt by their neighbors. While these six cases are illustrative of the state of pandemic law currently, judgments vary widely.

At NCLA, we will continue to press the judiciary to play its essential role in reinforcing constitutional structures and vindicating civil liberties where the political branches have imperiled them. Social distancing is effective at limiting the spread of a virus. But when courts social distance themselves from the constitutions that they have sworn to protect and defend, it’s also effective at limiting the spread of liberty.

We can’t afford to let the government flatten the curve on our civil liberties any further.

OPINION

SJC decision on Baker’s powers is poorly reasoned | CommonWealth Magazine

​The Massachusetts Supreme Judicial Court (SJC) ruled on Thursday that Gov. Charlie Baker’s various COVID-19 orders were authorized by the Massachusetts Civil Defense Act of 1950, and did not violate the plaintiffs’ due process rights or right to assemble under either the state or federal constitutions. The court’s opinion is superficial and poorly reasoned at best, and intellectually dishonest at worst, and is hardly the end of the matter.

The outcome of the opinion could readily be predicted from its first words, which identified the justice who authored it. Stunningly, that justice during the argument of the case had asked the plaintiffs’ counsel whether he didn’t agree that the governor was doing a good job with his COVID-19 measures. Any first-year law student, and indeed most sentient citizens, would know that the job of a justice ruling on a legal or constitutional challenge to a government measure is not to agree or disagree with any policy underlying the measure, or the results achieved by it, but rather to rule on whether it is indeed legally or constitutionally valid.

For starters, in finding the governor’s orders authorized by the Civil Defense Act, the court said it was “apparent” from section 5 of the statute, its emergency declaration provision, as well as “the statute as a whole,” that “a pandemic on the scale of the COVID-19 pandemic” came within the section’s phrase “other natural causes.”  The court rejected a statutory interpretation principle requiring that the general phrase “other natural causes” be limited to events similar to the immediately preceding more specific events of “fire, flood [or] earthquake,” as that principle is not appropriate where the statutory language is “unambiguous.”

The superficiality or intellectual dishonesty of these assertions is evident on multiple grounds.  The question was not the meaning of “other natural causes” in isolation, but rather the full phrase involving the actual “occurrence” (not mere risk) of a “disaster or catastrophe resulting from fire, flood, earthquake or other natural causes.”  The court conveniently omitted from its opinion the fact that the governor’s declaration was premised on the occurrence of only 91 “presumed” COVID cases spread among the Commonwealth’s 6.9 million people, and did not pause to examine how that constituted an actual disaster or catastrophe.  Instead, in a sleight-of-hand, the court looked to the present state of COVID affairs rather than the state at the time of the emergency declaration, and equally improperly to the state of affairs in the worldrather than Massachusetts, referring to “a pandemic that has killed over a million people worldwide.”

In addition, the extent of the court’s analysis of  “the statute as a whole” was to look only at one additional phrase in section 5 referring to the Legislature’s desire “to protect the public peace, health, security and safety, and to preserve the lives and property of the people of the Commonwealth.”

Of course, those are the purposes of virtually every legislative enactment.  The court conveniently ignored (1) the statute’s title identifying its subject as “Civil Defense,” (2) the statute’s definition of civil defense as involving “emergency functions” such as the National Guard, firefighting and police, engineering, evacuation, restoration of utility services, and the like, (3) the statute’s creation of the Massachusetts Emergency Management Agency, hardly a bulwark of epidemic response, and (4) its provisions for the government to commandeer real property and vehicles to aid in emergency response. With the benefit of the court’s blinkered eyes, the meaning of “other natural causes” was thus easily “apparent” and “unambiguous.”

Relatedly, in supposedly considering “the statute as a whole,” the court completely ignored section 7 of the statute, which enumerates various emergency powers of the governor, none of which have anything to do with pandemic-fighting.  The court also did not attempt to analyze whether, even assuming a valid emergency declaration, the 49 orders challenged by plaintiffs were indeed authorized by section 7, perhaps because the plaintiffs did not raise this issue.

The section authorizes the regulation of “[l]abor, business or work on Sundays or legal holidays,” not the everyday closures and other regulation that the orders entail.  The section authorizes the regulation of schools “supported in whole or in part by public funds” in order “to extend the benefits or availability thereof,” not the regulation of schools both public and private and drastic curtailment of their services.

Regarding the constitutional issues, the court, as also noted in a previous column, did not have any actual factual record, including scientific literature and expert testimony, on which to base its decision.  It did not examine the actual text of anyof the 49 orders in question, but rather simply ruled that “[t]he emergency orders as a whole” were “informed by public health recommendations and serve the State interest of slowing the spread of COVID-19, which is a legitimate State interest,” and hence satisfied due process under a “rational basis” standard.

And the court concluded that any restriction on citizens’ right to assemble was valid because it was not based on the citizens’ viewpoints, left open alternative channels of communication, and was not “’substantially broader than necessary to achieve the government’s interest’ of reducing the spread of COVID-19.”

As a starting point, the court’s unsupported assertion that preventing the spread of disease per se is a significant government interest justifying liberty restrictions is completely unfounded.  On that basis, all of our interpersonal actions—at home, at work, and in society—could be restricted in ways similar to the COVID orders due to the risk that simple colds, influenza, measles, or other communicable diseases could spread through normal living.  To the contrary, the government’s only legitimate interest lies in protecting those who cannot protect themselves, such as frail nursing home residents, not those who are fully capable through their own voluntary choices of deciding how much personal risk they want to tolerate by their life activities.

That aside, the court’s sweeping conclusion that all 49 orders were valid, without analyzing any of their texts and without the benefit of any actual evidence, can only mean, at best, that the court views the orders as not constitutionally invalid on their face under due process and the right to assemble.

As one final example of the justices’ apparently irresistible urge to approve the actions of the governor who appointed all of them, the court even noted helpfully in a footnote that although “[t]he petitioners have not argued that the houses of worship are being treated differently from the secular businesses,” the court had “reviewed the orders” in light of the United States Supreme Court’s November 25 decision in Roman Catholic Diocese v. Cuomo and concluded they “do not suffer from the same features criticized by the Court in that case.”

The court’s volunteered and wholly peremptory conclusion is somewhat interesting in that the governor’s orders challenged in Desrosiers initially imposed an absolute numerical limit of 10 persons at any religious service, rather than a limit based on percentage of building capacity, and without taking into account any other prophylactic measures—such as mask-wearing and distancing—that the place of worship was employing.

In fact, those were precisely the features of New York Gov. Andrew Governor Cuomo’s orders that led the Supreme Court to conclude his orders likely violated the First Amendment right to the free exercise of religion. As the court noted, “even in a pandemic, the Constitution cannot be put away and forgotten,” and courts “have a duty to conduct a serious examination of the need for such a drastic measure.”  Would that the SJC had conducted such a “serious examination of the need,” or had a factual record on which to do so.

The court’s decision is far from the end of the matter.  The ruling is at best binding only on the plaintiffs in the case, and at most only resolves as to them the section 5 issues that the court actually addressed and the limited facial constitutional issues it appears to have attempted to address, to the extent one can discern that from the court’s limited discussion.  In addition, the court’s views on the federal constitutional issues are not at all binding on federal courts, including of course the Supreme Court, which has the final say on such matters.  Those courts also appear to be far more solicitous of fundamental human liberties, and less prone to judicial abdication, than the SJC.

Future individual, business, religious, and educational plaintiffs, therefore, remain free to argue that the SJC should revisit its interpretation of section 5 in light of the many statutory points the court did not consider.  Plaintiffs may also argue that even if the emergency declaration itself was valid, individual COVID orders that affect the plaintiffs are not authorized by section 7 of the statute.

Such plaintiffs are free to argue that the SJC should revisit even the facial validity of individual orders based on an actual factual record from a preliminary injunction hearing or trial, and that regardless of facial validity individual orders as applied to the particular plaintiffs are unconstitutional under the state and federal constitutions.  And all the federal constitutional issues remain fully open in federal courts.


Originally published in CommonWealth Magazine on December 11, 2020

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Baker usurping the role of Legislature | CommonWealth Magazine

The Governor’s Executive Order shutting down “non-essential” businesses and organizations has been in place since March 24. While Gov. Charlie Baker has modified the order and eased some of his restrictions, that doesn’t legitimize them. His orders are not laws passed by the Legislature and do not apply Massachusetts’ existing laws for handling health crises.

The governor has usurped the role of the Legislature by exercising the police power (the power to regulate the health, safety, and morals of society) in the manner he sees fit. Governor Baker’s purported authority flows from the Civil Defense Act, but as the name implies, the Civil Defense Act exists to protect Massachusetts from invasion, armed insurrection, or storm destruction that could eliminate essential infrastructure providing clean water and shelter. The act does not apply to a pandemic.

As CommonWealth reported recently, “Baker finds himself shoehorning 2020 concerns about social distancing, contact tracers, and non-essential businesses into a 1950 law preoccupied with military threats and nuclear fallout shelters.”

The authority to exercise the police power is the Legislature’s, and the Legislature has already spoken on the issue of pandemic in the Public Health Act. For one thing, the Public Health Act calls for the state Department of Public Health to promulgate appropriate disease-mitigating regulations. The act also grants local boards of health significant authority to protect residents from infectious disease outbreaks—including restricting travel from out-of-state infected areas and quarantines for sick individuals. Don’t bother looking for a provision in the act that allows the governor to close businesses across the state. You won’t find it.

There’s good reason for the Legislature’s policy choice of local control. Massachusetts is a diverse state, and its people have diverse interests and needs. COVID-19 has not impacted Pittsfield the same way it has impacted Monterey—and they’re in the same county and barely 30 miles apart. How different are the health dynamics in Boston from those in Lenox?

According to Baker’s four-phased re-opening plan, some Massachusetts businesses and organizations would have to wait over 100 days, at the earliest, to re-open. Easing restrictions is a welcome change, but his authority to take any action, especially actions premised on civil defense, must always have a clear and firm legal basis. A group of entrepreneurs, pastors, and an educator have filed a complaint in state court seeking a declaration that the governor’s actions are unlawful, for this reason.

COVID-19 is a very real threat to the health and lives of Bay Staters, especially those with underlining health conditions and the elderly. The plaintiffs and their neighbors were asked to stay at home, not go to work, and to put their lives on hold so that Massachusetts could flatten the curve and prevent the virus from overwhelming our emergency healthcare facilities. Appreciating the seriousness of the situation, they gladly did that.

Now the curve has been flattened, but the governor’s executive orders are still in place. The orders continue to push countless businesses and individuals to the brink of insolvency, while infringing on the civil rights of almost everyone in the Commonwealth.

Founding father John Adams insisted that the Massachusetts Constitution include a robust separation of powers, where the executive could not exercise legislative authority, “to the end it may be a government of laws and not of men.” If Baker can rule by decree, Massachusetts government has become a government of men—or one man, to be precise.

The plaintiffs believe the governor’s intentions are well-meaning, but they also recognize that the government must return to its prior condition—ruled by laws. If successful, local boards of health will implement strategies befitting their communities to prevent spread of COVID-19, and the Legislature can take up any issue requiring broader applicability to the Commonwealth.

Just as John Adams intended.


Originally published in CommonWealth Magazine on June 1, 2020