Residents of Massachusetts owe much to Gov. Charlie Baker’s decisive action to contain the coronavirus. Despite an early bloom during last spring’s outbreak of COVID-19, tracing back to the fateful Biogen meeting at Marriott Long Wharf on Feb. 26 and 27 since identified as a “super-spreader” event, the pandemic’s footprint at this point is about average for the United States. A COVID-19 case count in Massachusetts of about 124,000 at the end of the week ranks 17th among the states — 24th when adjusted for population.

Despite our gratitude that things aren’t worse than they could be, the state’s response to COVID-19 has not been flawless, nor is it a model of cooperation of government at its highest levels. Baker and his administration wielded extraordinary power in closing schools and businesses, and imposing rules limiting people’s freedom. They’ve done so under the auspice, apparently, of a Cold War-era law imagining nuclear winter, not so much pandemic.

Massachusetts has a law on the books outlining a plan for a pandemic, it turns out. But that law gives authority for forced closures and gradual reopening of the economy and society to local boards of health, appointed by and accountable to locally elected officials.

On Friday, the Supreme Judicial Court sifted through this mess. It is a failure of government that the justices are the ones intervening here. Responsibility lies with members of the state House and Senate who should’ve foreseen this problem months ago, and should now revise the Public Health Law to ensure Baker has the tools needed to implement his four-phased reopening.

Hindsight is always clearer, of course. The danger and quickly spreading nature of the coronavirus were as unprecedented in modern times as the state’s response to them. But a lawsuit brought by a group of businesses and religious leaders shows the crack in the workings of government in clear relief.

Michael DeGrandis, lawyer for the plaintiffs, said the Baker administration is using power the Legislature specifically put into the hands of health officials. According to CommonWealth magazine’s account of the court’s Zoom hearing, DeGrandis told the justices: “The governor has taken control. He’s turned the government upside down. At this point the Legislature is left to approve or disapprove of the governor’s policy choices. That’s not how it’s supposed to work. The governor is supposed to execute the policy choices of the Legislature.”

The state says the Civil Defense Law is broad enough to give the Baker administration power to act, and besides, the Legislature basically went along with what Baker was doing when it passed emergency relief measures supporting his efforts. That’s so much convenient reasoning.

If lawmakers truly stand behind the governor’s broad actions to keep COVID-19 in check, they should’ve said so explicitly by now, instead of leaving it to the courts to try and discern their support based upon so many incremental votes. Asking the justices to go along with that thinking is asking the court to be the functional equivalent of a mood ring for the Legislature.

There are practical concerns here, to put it mildly. The justices themselves questioned the wisdom of yanking the legal rug out from under the Baker administration’s carefully scripted reopening plan, and what it could mean for a virus so dangerous it had the court meeting via internet. “Do you really think numerous local boards of health can contain a pandemic that spreads like this?” asked Justice Elspeth Cypher.

Indeed, without the Baker administration’s steadying hand, one imagines the messy, tortured approach to reopening schools playing out on a much broader scale. One also imagines emergency rooms refilling and the scramble to find enough ventilators for COVID-19 patients and personal protective equipment for the people treating them.

Seven justices will now decide the fate of the state’s plan to gradually reopen without allowing COVID-19 cases to come rushing through the door. That’s not as it should be. Instead, it’s the responsibility of 200 state legislators to set the limits of the Baker administration’s authority and ensure its pandemic response is not thrown off the rails.

 

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