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U.S. Supreme Court review sought of governor’s pandemic orders

Massachusetts Gov. Charlie Baker is less than three months away from lifting all remaining COVID-19 restrictions, but critics who believe the Republican governor overstepped his authority are asking the U.S. Supreme Court to declare Baker’s actions to date a violation of the Constitution.

The plaintiffs unsuccessfully sued Baker last summer attempting to overturn many of his executive orders that put business and other gathering restrictions in place during the COVID-19 pandemic, but the Massachusetts Supreme Judicial Court upheld the governor’s orders in December.

Now the New Civil Liberties Alliance, on behalf of a group of small business owners, religious leaders and a private school administrator, is asking the U.S. Supreme Court to hear their case.

“Legislatures are there. They’re capable of taking on hearings, taking on information and deciding what sort of remedial measures the community should take at large, instead of having governors make law by executive decree,” said Mike DeGrandis, the NCLA attorney who argued the case before the SJC.

While it is unlikely the Supreme Court would act in time to disrupt Gov. Baker’s current reopening plans, the lawyers and advocates involved say the case still has value in making sure Baker or future governors do not similarly use public health as grounds to wield expansive executive authority.

DeGrandis said he believes the SJC applied “exceedingly lax” standards when it evaluated Baker’s restrictions on the right to assemble and the plaintiffs’ due process rights. He also said he believes the SJC relied too heavily on the Supreme Court’s early-pandemic decision involving religious gatherings in California that gave Gov. Gavin Newsom some latitude in light of the pandemic.

DeGrandis said the more relevant decision was the court’s superseding ruling that blocked New York Gov. Andrew Cuomo from limiting the size of religious gatherings in certain neighborhoods of New York City where the virus’s infection rate was rising.

In upholding Baker’s authority under the Civil Defense Act, the SJC ruled that the governor’s executive orders were widely applicable, and not targeted at specific types of businesses or activities, although certain businesses and workers were designated as “essential.”

The justices also noted that nothing prevented the Legislature from intervening or passing laws over the course of the pandemic to exert their own authority over the state’s response.

The filing of the petition asking the Supreme Court to hear NCLA’s case came the same day a number of business restrictions and capacity limits were lifted, with amusement parks and road races among the activities allowed to resume and large venues like Fenway Park and TD Garden permitted to increase fan capacity to 25 percent.

Baker has laid out a timeline that will see all remaining restrictions removed by Aug. 1, if not sooner, as long as health metrics related to the virus, including new cases and hospitalizations, continue to improve. The state over the weekend passed the milestone of 4 million first vaccine doses administered, with 73 percent of all adults and 63 percent of all residents in Massachusetts having received at least one dose.

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