The Patriot Post® · State Lawmakers Need to Have More Say in a Crisis

Massachusetts Governor Charlie Baker is one of the most popular governors in America. That popularity, not surprisingly, is reflected in support for his handling of the COVID-19 crisis.

According to a statewide poll released on May 4, Massachusetts residents overwhelmingly endorse Baker’s response to the coronavirus outbreak. Fully 84 percent of respondents in the Boston Globe/WGBH/Suffolk University survey approve of the sweeping restrictions Baker has imposed since declaring a state of emergency on March 10, and 85 percent support his order extending the shutdown of nonessential businesses until May 18.

But what if that weren’t the case? What if Baker’s emergency orders were widely regarded in Massachusetts as misbegotten? What if it weren’t only a slim minority of the state’s voters that was outraged by the economic and liberty costs of those orders, but a plurality, or even a majority, that felt that way? What could they do? What could their elected legislators do?

The short answe: Not much.

In Massachusetts, once the governor has proclaimed a state of emergency, he is authorized under the state’s Civil Defense Act to “exercise any and all authority over persons and property” in order to deal with the crisis. He may suspend laws, commandeer property, close schools and businesses, halt transportation — whatever he deems necessary under the statute’s extraordinarily broad grant of power. His orders have the force of law, and anyone violating “any provision” of such an order “shall be punished” with up to a year in prison and a $500 fine.

Many other states empower their governors with similarly comprehensive emergency powers. In a few, legislative approval is required for the governor’s emergency authority to take effect or to remain in effect after an initial period. But in Massachusetts, as in most states, the governor’s expanded powers are triggered on his own say-so and last until he decides they should end. Baker’s March 10 order explicitly states that it “shall remain in effect until notice is given, pursuant to my judgment, that the state of emergency no longer exists.”

To be sure, there are sound reasons for allowing governors to deploy such power. “Only the Executive is usually able to work at the pace and nimbleness required to address the emergency,” says former Judge Dan Winslow, who served as Governor Mitt Romney’s chief legal counsel. That echoes Alexander Hamilton’s observation in Federalist No. 70 that “energy in the Executive … is essential to the protection of the community against foreign attacks.” Hamilton was speaking of the presidency and military attacks, but few would question the need for a governor to act with similar speed and decisiveness when an emergency strikes within a state.

All the same, rule by executive decree should be deeply disconcerting to Americans, especially when it covers an entire state and no clear end to a declared emergency is in sight. Baker said Wednesday that he hopes “to begin reopening certain types of businesses in a limited fashion” on May 18 — but only if he sees “sustained downward trends” in COVID-19 infection and hospitalization rates. The numbers so far, the Globe reported in a front-page story Thursday, “leave little room for optimism.”

As noted, Baker enjoys widespread support. Few Massachusetts citizens doubt that he is trying to make the best decisions he can with the information he has.

Nonetheless, in our system of government, one man’s best intentions still require democratic legitimacy. Even in a health emergency, shouldn’t there come a point when the governor’s unilateral orders need some sort of legislative buy-in? Especially in a state like Massachusetts, where the Legislature doesn’t convene for just six or eight weeks and then adjourn, as is normal elsewhere? If the role of lawmakers is so vital that Massachusetts needs a full-time Legislature, how can it be OK for them to have no role whatsoever as unprecedented restraints are imposed on their constituents?

In some states, tensions between the executive and legislative branches are flaring. Wisconsin’s Supreme Court heard arguments Tuesday in a lawsuit brought by the legislature challenging the right of the state’s top health official to issue lockdown orders. The Ohio House of Representatives approved a measure limiting emergency orders issued by the executive branch to 14 days, and requiring legislative approval for any extension. Louisiana lawmakers are debating a bill to prevent the state from punishing business owners who open their doors before the governor’s stay-at-home orders expire. Conversely, the Oklahoma legislature voted by a wide margin to extend Governor Kevin Stitt’s emergency powers by another 30 days.

Different states have different priorities, different medical and economic circumstances, different political environments. But all states benefit when the people’s elected representatives are not excluded from the imposing of rules that the people must abide by. Infringements on personal liberty and disruptions to economic life may be justifiable in the current crisis, but that doesn’t mean they shouldn’t be subject to the checks and balances that keep each branch of government from riding roughshod over the others.

The Massachusetts Legislature isn’t legally required to take a stand on Baker’s emergency orders. It should do so anyway, expressing itself via a joint resolution debated and voted on by each chamber. And when the pandemic has passed, it should amend the Civil Defense Act, requiring that the carte-blanche emergency powers extended to governors be balanced with some form of legislative consent. Charlie Baker won’t be governor forever, after all, and lawmakers shouldn’t be relegated to the sidelines, powerless to act while a single official issues orders that have the force of law.

(Jeff Jacoby is a columnist for The Boston Globe).