By Chris Villani

Law360 (November 20, 2020, 5:02 PM EST ) The resurgence of COVID-19 in Massachusetts could prompt Gov. Charlie Baker to again impose aggressive restrictions on businesses using a decades-old statute, but legal experts say courts are likely to give him broad deference in combating the public health crisis.

Baker was one of many governors to impose sweeping business closures and other measures in the spring when the virus first surged in the Bay State. Despite the governor's broad popularity, a number of the emergency orders enacted under the Civil Defense Act have drawn legal challenges.

While Baker's record in these suits has not been perfect, experts told Law360 the courts are likely to defer to his authority should he decide to snap restrictions back into place.

"While there are limits, the emergency powers mirror the nature of the emergency," said Nancy Gertner, a former federal judge and current Harvard Law School professor, adding that a crisis like COVID-19 would be reviewed by looking at the rational basis of the measures imposed.

It's a standard she said the governor is likely to meet.

"This is not like mandating motorcycle helmets, which is a public health issue but affects everyone else around the motorcyclist only tangentially in terms of insurance rates and visits to emergency rooms," Gertner said. "This is a direct link where what you do affects me."

In the springtime, most nonessential businesses in Massachusetts were shuttered and a stay-at-home advisory was issued. Fall restrictions have been comparatively mild: restaurants and entertainment venues must close by 9:30 p.m., people are advised to be in their homes by 10 p.m., and everyone must wear masks any time they are out in public.

Baker's office said recently he has "no plans" to impose additional COVID-19 measures in the near future and a representative did not immediately respond to a comment request Friday.

At least six cases have been filed challenging all or some of Baker's restrictions, with several still pending. In two cases in which the governor prevailed, the judges who ruled in Baker's favor said he was able to provide a rational basis for implementing the rules in question.

The most sweeping challenge to Baker's authority is a case pending before the state's Supreme Judicial Court claiming that the governor was wrong to turn to the Cold War-era Civil Defense Act. The civil liberties group leading the case argues that the law is aimed at combating foreign invasions and natural disasters, not pandemics.

"There comes a tipping point where you have essentially a king with infinite power for an indefinite duration," said Mike DeGrandis of the New Civil Liberties Alliance, the lead attorney in the case.

He pointed to an October ruling in Midwest Institute of Health, PLLC v. Whitmer as a "bellwether" case in which the emergency powers of Michigan Gov. Gretchen Whitmer were reined in.

But the situation is different in Massachusetts, said Northeastern University School of Law professor Wendy Parmet. While Baker is a Republican and the super-majority of state legislators are Democrats, there seems to be little desire on the part of the latter to usurp the governor's ability to act during the crisis.

"I would be surprised if the court ruled in a way that completely decapitated the governor's ability to respond to the pandemic," Parmet said. "I don't think we have a dynamic here that we have in some states with that level of tension between the governor and the legislature."

New England Law-Boston professor Lawrence Friedman agreed, adding that, as a practical matter, nothing would stop the legislature from filing a bill to delegate authority to the governor even if his powers under the Civil Defense Act were stripped. Baker has also received praise for his nuanced approach to the pandemic, Friedman said.

"The governor's orders have been more sensitive than orders in other jurisdictions about the free exercise of religion and perhaps more sensitive than they need to be," Friedman said. "There is likely to be continued deference because this administration has shown it is sensitive to the other interests that are involved."

Some judges have pushed back against the governor. Baker was challenged in federal court successfully by gun shops and ranges, which in May won the right to reopen in a ruling by U.S. District Judge Douglas P. Woodlock, who said from the bench, "We don't surrender our constitutional rights."

Another federal judge, Mark L. Wolf, left in place a moratorium on evictions in Massachusetts but added "there are limits imposed by the Constitution on what elected officials can lawfully do."

And even as the Supreme Judicial Court extolled the governor for his measures combating the virus, the court did seem to wonder during the September oral arguments how long the emergency orders could reasonably stay in place.

"If we don't get a vaccine for two years, how do we analyze that legally?" asked Justice Scott L. Kafker.

"I think any future challenges are going to have to have, as their hook, the infringement of some individual interest protected under the Constitution," Friedman said. He cited the right to assemble, the right to bear arms and the right to exercise religion.

One such challenge was filed this week by operators of walking tours, who argued that Baker is unfairly limiting the tours during the pandemic while allowing larger political protests and religious gatherings to continue. The suit claims the alleged disparity in treatment violates the First and 14th amendments.

Gertner said that it's vital for courts to review these measures to make sure they have a basis. That said, given the surge in cases correlating with colder weather and more people congregating indoors, she suspected that courts would give Baker a wide berth.

"Any court looking at this has to look at the rationale, the scope of it and its consistency, the extent to which it treats all people equally, and the time limit," Gertner said. "If the virus dramatically declines in terms of spread, if there is a vaccine that could at least immunize some portion of the public, of course you'd have to examine these restrictions again."

University of Massachusetts-Amherst professor David Mednicoff added that the broader political climate in the state could work in the governor's favor, both in terms of the judges that will hear the cases and in limiting the number of challenges brought in the first place.

"I think the judges in our jurisdiction would be likely to be more favorable to understanding science and less likely to overturn state orders with a rational basis," Mednicoff said. "Secondly, I think there is going to be less traction around lawsuits because the public climate is going to be one of, for the most part, appreciating why these restrictions are in place."

"This is not a place where 50 or 60% of people don't believe the pandemic is real," he added.

--Editing by Michael Watanabe.

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