WORCESTER MEDICINE
Legal Consult
States of Emergency Peter Martin, Esq.
“[The forefathers] knew what emergencies were, knew the pressures they engender for authoritative action, knew, too how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” (1)
G
ov. gharlie baker declared a state of emergency in massachusetts
on March 10, 2020, resulting from the COVID-19 pandemic, citing Massachusetts General Laws chapter 17, section 2A and chapter 639 of the Acts of 1950 (the “Civil Defense Act”). The governor on May 28, 2021 both rescinded his earlier declaration, and declared this state of emergency terminated as of June 15, 2021, with respect to both statutes. Thirty minutes later, he declared that “an emergency exists that is detrimental to the public health in the Commonwealth” as of May 28, 2021, under MGL c. 17, section 2A and not under the Civil Defense Act. The net effect of these twin declarations was to vest in the commissioner of public health the authority, with the approval of the Public Health Council, to extend or adopt measures to respond to the pandemic. The commissioner on June 14, 2021 re-issued, among other things, 14 public health orders related to the pandemic, under what was referred to in some Department of Public Health documents as the “Modified Public Health Emergency” declared May 28, 2021. This sequence of events, and the legal authorities cited, raise interesting questions about what is a public health emergency and how do we know when it is over. Under what circumstances should the normal legal constraints on the exercise of governmental power be loosened and what can a government not do during an emergency? As the COVID-19 pandemic, hopefully, evolves into an endemic respiratory disease like the annual flu, the modified public health emergency should likewise evolve into something else, but what, and when and why? The two statutes cited by Gov. Baker vary widely in intent and scope. The 1950 law is clearly a relic of the Cold War; section 5 of that statute, which conferred on the governor the power to “issue a proclamation or proclamations setting forth a state of emergency,” begins by citing “the existing possibility of the occurrence of disasters of unprecedented size and destructiveness resulting from enemy attack, sabotage or other hostile action.” The trigger for such a proclamation is “the occurrence of any disaster or catastrophe resulting from attack, sabotage or other hostile action or by fire, flood, earthquake or other natural causes.” The scope of the governor’s powers under section 7 of the law is extremely broad: “the governor, in addition to any other authority vested in him by law, shall have and may exercise any and all authority over persons and property, necessary or expedient for meeting said state of emergency, which the general court in the exercise of its constitutional authority 16
may confer upon him as supreme executive magistrate of the commonwealth and commander-in-chief of the military forces thereof.” The statute is silent as to the length of an emergency proclamation and contains no provisions for review, renewal or rescission of such a proclamation. The second statute cited is far narrower. It governs the powers of the public health commissioner in certain circumstances. It states: “upon declaration by the governor that an emergency exists which is detrimental to the public health,” the commissioner, with the approval of the governor and the Public Health Council, may take such actions as “he may deem necessary to assure the maintenance of public health and the prevention of disease.” This statute is silent as to under what circumstances the governor may declare the existence of an emergency that is detrimental to the public health, and it does not provide for either time limits or periodic review of an emergency declaration. This silence is typical of many state statutes regarding public health emergencies. Where a state law is silent on what constitutes a public health emergency, it generally permits the governor to make that determination in his sole discretion. Where a state law seeks to define “public health emergency” it does so with broad language; many states adopt language derived from The Model State Emergency Health Powers Act proposed in 2002 by the National Conference of State Legislatures. The Model Act definition of public health emergency is “an occurrence or imminent threat of an illness or health condition that is believed to be caused” by a number of events, including bioterrorism, a natural disaster or “the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin” that poses a high probability of a range of harms, from a large number of deaths or serious or long-term
JANUARY / FEBRUARY 2022
