Is Charlie Baker’s Prolonged Coronavirus Shutdown Legal?

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Is what Massachusetts Governor Charlie Baker has been doing over the past two months legal?

Among Baker’s critics, some object on policy grounds, saying he’s doing the wrong thing. Some also say he doesn’t have the authority to do what he is doing.

Baker has claimed expanded executive power since he issued an executive order on March 10 (No. 591: Declaration of a State of Emergency to Respond to COVID-19).

The governor’s coronavirus executive orders refer to a state statute known as the Civil Defense Act of 1950, which was enacted around the beginning of the Korean war. (It’s Chapter 639 of the Acts of 1950; the governor’s order mentions Sections 5, 6, 7, 8, and 8A.)

Then-Governor Paul Dever argued for the act by saying Boston was unprepared for an atomic bomb attack, according to a news story in the June 8, 1950 issue of The Boston Globe. After it was passed, Dever invoked the act later that year when President Harry Truman declared a national state of emergency, chiefly to improve the civil defense capabilities of the state government.

The act offers wide-ranging powers over state agencies and various aspects of public life. It also sets a penalty for violating one of the governor’s orders for which there is no existing law:  “imprisonment of not more than one year, or by a fine of not more than five hundred dollars, or both.”

Governor Baker’s original coronavirus executive order describes “the worldwide outbreak of COVID-19 and the effects of its extreme risk of person-to-person transmission throughout the United States and the Commonwealth” as “a disaster that impacts the health, security, and safety of the public,” thus justifying his extraordinary powers under the Civil Defense Act.

Baker’s executive order of March 10 also mentions a state statute that public health emergencies:  Massachusetts General Laws Chapter 17, Section 2A.

It states:

Section 2A. Upon declaration by the governor that an emergency exists which is detrimental to the public health, the commissioner may, with the approval of the governor and the public health council, during such period of emergency, take such action and incur such liabilities as he may deem necessary to assure the maintenance of public health and the prevention of disease.

The commissioner, with the approval of the public health council, may establish procedures to be followed during such emergency to insure the continuation of essential public health services and the enforcement of the same.

Upon declaration by the governor that such emergency has terminated, all powers granted to and exercised by the commissioner under this section shall terminate.


None of this means Baker has unlimited power, however. 

A federal court ruled on May 7 that it was unconstitutional for governor to shut down gun shops during the public health emergency because the order violates the Second Amendment of the U.S. Constitution. Many pastors have argued it was unconstitutional for the governor to prevent them from holding public church services, saying that it violates the First Amendment. (A federal lawsuit filed May 13 on that point is pending.)

But what about the governor’s other actions, including keeping businesses closed down for months? Can he do that?

Legal experts differ.

Some say he can. Some say he can’t. Some say that even if he could his power has expired.

A passage in Massachusetts General Laws (Part I, Title XXII, Chapter 161A, Section 37) states in part:  “The powers hereby granted to the governor shall expire 45 days after his proclamation that a state of emergency exists.”

David Reischer, an attorney and the chief executive officer of, says it indicates what Baker is doing is wrong. 

“Any action that the Massachusetts governor may take must also comply with both the Massachusetts state constitution and the federal constitutions,” Reischer said in an email message to New Boston Post. “It is well established under principles of ‘due process’ during a quarantine or isolation that it not be ‘arbitrary, oppressive and unreasonable’.”

Reischer said if a case against the state of Massachusetts went to court, Baker’s executive orders would likely face scrutiny. As an example of what s a state court can do, he cited the Wisconsin Supreme Court’s ruling that invalidated the state’s “safer at home” order.

He added, “There are other constitutional issues of freedom of assembly, freedom of speech and religion, taking without compensation that would also potentially merit scrutiny by the Massachusetts supreme court, on whether the governor may extend the original 45-day order.”

As of today — Thursday, May 28 — Baker’s original executive order of March 10 was issued 79 days ago.

So has it expired?

Jared Carter, an assistant professor at Vermont Law School, says that the 45-day limit likely would not apply broadly in this case. Rather, he said, this particular statute pertains specifically to the governor’s emergency powers when it comes to public transportation. 

“That does appear to have a 45-day time limit, but that is definitely different than the governor’s general powers to declare a state of emergency,” Carter told New Boston Post in a telephone interview. “As far as I can tell, this has more to do with transportation stoppages or work strikes. For example, if the T or a private bus line stopped running and he deemed it essential, the governor would be empowered by this statute to take those over temporarily.”

Carter said the more relevant statute in this situation would be a different portion of Massachusetts General Laws:  Part 1, Title II, Chapter 17, Section 2A — a section titled “Powers of commissioner upon declaration of emergency”.

That statute does not have a time limit attached to it.

However, he said he is unsure how the Massachusetts Judicial Supreme Court would end up ruling on a legal challenge — seeing the potential for it to go either way.

Additionally, Paul Engel of The Constitution Study, a web site dedicated to constitutional law, said he’s also not sure how the state’s highest court would rule.

Engel did say he thinks the shutdown orders violate the United States Constitution, however.

One major reason:  the Fourteenth Amendment. It says:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Shutting down large sections of the economy does just that, Engel says.

“These shut down orders have deprived Americans of the liberty to live life as they please as long as they have not been shown to infringe on the rights of others,” Engel said in an email message to New Boston Post. “It is one thing to quarantine someone when there is probable cause that they are infected and/or contagious. It is quite another to effectively place large swaths of the population in house arrest merely on the order of an elected official.”

“Furthermore, by depriving business owners the ability to use their business, the government has deprived them of that property (both the businesses and the benefits they derive from them), all without any due process,” Engel wrote. “And by targeting certain businesses and organizations for restriction while allowing others to operate, these governments have denied to many the equal protection of the law protected by the 14th Amendment.”

Harvard Law professor Laurence Tribe, who has argued in front of the U.S. Supreme Court 35 times, disagrees with Engel’s logic.

Tribe, who taught both former President Barack Obama and Texas Republican Senator Ted Cruz at Harvard, told New Boston Post in an email message:  “I’m confident that nothing Governor Baker has done to date regarding Covid-19 violates federal law, or state law, for that matter.”

The press office for Governor Charlie Baker could not be reached for comment by telephone or email for this story.