Executive Orders Go a Step Too Far in Enforcement & Use of Police Powers

The Fiscal Alliance Foundation made the following statement in response to Governor Baker’s new executive orders which mandate masks in public spaces regardless if you are alone or can socially distanced, limit gatherings in private homes to under 10 people, and impose new curfews for businesses and residents across the Commonwealth. The Governor’s orders come with fines and local authorities, including police, are advised to enforce these orders.

The Governor is using the state’s Civil Defense Act, not the state’s Public Health Act, to impose these new orders. The Civil Defense Act has never been used by a Governor before Governor Baker, to deal with a pandemic. The Civil Defense Act was intended to be used to counter Cold War era threats, while the state’s Public Health Act includes rules intended to guide a government response to a pandemic. The Civil Defense Act gives sweeping power to the Governor in order to protect the state from a foreign invasion and its resulting calamity. But where a threat to public health arises from disease, the legislature delegated its police powers to state and local healthcare officials, not the Governor. Governor Baker has side stepped the legislative process and violated the separation of powers, to pursue these orders—55 since March, with no end in sight. Under the Governor’s new orders, compliance will be enforced by fines and according to the Governor’s orders, “local boards of health, and authorized agents are authorized to enforce this order and may do so with the assistance of state or municipal police.” 

The New Civil Liberties Alliance (NCLA) is challenging the Governor’s limitless authority of his use of executive orders, but are not challenging the underlying policies. The lawsuit is known as Desrosiers v. Baker and it is currently being considered by the state’s highest court, the state Supreme Judicial Court.

“Massachusetts is heading down a slippery slope in its reliance on unconstitutional executive authority to deal with this pandemic. Treating this public health crisis should not come at the expense of our state’s constitution and personal liberties. Enforcement should not be compelled by fines and the use of local or state police without the explicit consent of the people’s legislature,” said Paul Diego Craney, a spokesman for the Fiscal Alliance Foundation.

“Massachusetts residents and small businesses have done an excellent job at heeding the warning and can act responsibly on their own without the Governor’s limitless orders that look to punish anyone who disobeys his orders,” stated Craney.

“People who can socially distance, or be alone in a public space, should not feel the threat of the Governor and his limitless orders that come with a fine and the potential to be administered by law enforcement,” continued Craney.

“Courts have begun to rein in the use of executive orders across the country and Massachusetts needs to be reined in. The SJC should determine if these types of orders are constitutional. Even during a pandemic, rights must be protected,” concluded Craney.