Litigation Update: Desrosiers et al. v. Gov. Baker: A Conversation with NCLA’s Michael DeGrandis

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The Massachusetts Supreme Judicial Court will soon hear a lawsuit on accelerated consideration brought by the New Civil Liberties Alliance that aims to restore constitutional governance to the Commonwealth. The suit seeks to overturn the Civil Defense State of Emergency, which Gov. Charlie Baker declared under the Commonwealth’s Civil Defense Act, which has never before been invoked for a health emergency. Massachusetts does have a Public Health Act expressly designed to empower local authorities to control and prevent transmission of infectious diseases dangerous to public health.

This case presents foundational due process questions. A hearing, which will take place on September 11, will ask the Supreme Judicial Court to declare that the Civil Defense Act does not confer any authority upon the Governor during a pandemic and to declare his orders null and void. This ruling would permit local boards of health to establish strategies befitting their communities.

Featuring:

Michael DeGrandis, Senior Litigation Counsel, New Civil Liberties Alliance

 

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum Conference call. This afternoon's topic is titled, "Litigation Update: Desrosiers et al. v. Gov. Baker: A Conversation with NCLA's Michael DeGrandis." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      As the title suggests, today, we are fortunate to have with us Mr. Michael DeGrandis, a Senior Litigation Counsel at the New Civil Liberties Alliance. After our speaker gives his opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Mike, the floor is yours.  

 

Michael DeGrandis:  Thanks, Greg. Thank you everyone for attending.  

 

So what I'd like to talk about is the Massachusetts Supreme Judicial Court oral arguments in the matter of Desrosiers v. Baker. They'll be hearing our arguments on September 11. And I think while obviously this is a significant issue for Massachusetts, it also has national implications.

 

Other governors are also encroaching on legislative prerogatives and perpetuating never-ending states of emergency. So I expect there will be interest in this case beyond Massachusetts and New England. And hopefully, we can contribute a bit to the dialogue across the country.

 

Now, in our case, Massachusetts's highest court will consider two questions presented. The first question presented is whether Governor Baker's March 10th declaration of the Civil Defense Act state of emergency and the COVID-19 orders issued pursuant to it are invalid and whether the COVID-19 orders violate the separation of powers doctrine in Article 30 of the Massachusetts' Declaration of Rights.

 

The second question presented is whether the COVID-19 orders violate petitioners' federal or state constitutional rights to due process and free assembly. The petitioners, I should just mention at the onset here, are as diverse as Massachusetts itself. They come from all over, some of them were born and raised in Massachusetts. Others moved from other states, and some moved from other countries. They own salons, restaurants, a gym, an entertainment center. They run a school and churches. They're located all across the commonwealth and urban areas, rural and the mountains, on the coast. And their opinions on COVID-19 policies, I should note, are as diverse as they are. But this case isn't about policy choices.

 

The petitioners are united by one principle proposition and that is that the Governor of Massachusetts may not rule them by decree, suspending and dispensing a law as he sees fit. Now, of course, I will get into the legal arguments here. That's why we're here and discussing this, of course. But I'd like to do something a little unconventional here and actually start at the end.

 

Some of you listening may quite reasonably fear the consequences of lawsuits that seek to invalidate executive orders that were designed to prevent spread of a dangerous disease. So let me see if I can allay that fear by starting at the end rather than starting at the beginning.

 

So I think the best way to frame it is if the Supreme Judicial Court rules that Governor Baker's declaration of a Civil Defense state of emergency is invalid, so he agrees with us, and the Court agrees that all his subsequent orders are invalid and unenforceable, what happens? Well, local boards of health will be liberated to do their jobs to keep their communities safe.

 

These are the health authorities charged with the responsibility under Massachusetts law to prevent and suppress the spread of infectious disease. Governor Baker has relegated these groups, these professionals and experts, to mere health police under his orders. And they're on the ground. They're in their communities, and they are ready to take action.

 

Massachusetts law empowers them and local governments to coordinate with the Massachusetts Department of Health and boards of health in neighboring towns. They craft community specific solutions to the community's specific health concerns of their residents.

 

If Massachusetts needs statewide mandates, if COVID-19 presents a different challenge than, say, whooping cough or measles or smallpox, whatever it may be, that's fine. Nothing is stopping a legislature from making statewide mandates. The legislature can do that through the constitutional process. That, of course, being bicameral presentment to the governor, in other words, lawmaking. That's what's supposed to happen here.

 

And we've seen what happens when we don't follow constitutional governance, as the governor has not in Massachusetts. When he makes law or suspends it or dispenses it, we find that new crises emerge. And I characterize them as co-morbid with the health crisis, crisis of social crisis, economic, educational, spiritual, and, of course, constitutional. All this does is exacerbate the health problem.

 

You don't need to look far to see these problems, problems that the Governor's orders have caused. Massachusetts has the highest unemployment in the country two months running. Massachusetts' government's responsibility is, yes, it's the health of the people but so too is the welfare of its people. It is possible to protect health, welfare, and civil liberties simultaneously during a pandemic. But constitutional process is the only way to achieve that.

 

And so with that little rant, so let's begin. So let's move back to the beginning, and let's discuss the first question presented. And the way we answer it is the pandemic is not an emergency under the Civil Defense Act. Now, that's not to say that it's not a health emergency. It probably is a health emergency. This presents a serious health challenge and a great risk, especially to vulnerable populations. But it isn't an emergency under the Civil Defense Act, and I'll discuss that in just a couple of minutes in a little bit more detail.

 

But I think first, just to give you a lay of the land, we were advancing this argument three different ways. First, with your standard cannons of statutory interpretation that demonstrate that a pandemic doesn't fit the statute itself, the Civil Defense Act. Second, that there's a statute directly on point, and that's the Public Health Act, that's expressly designed to prevent and suppress diseases dangerous to the public health. That's the phrase directly from the Act, "diseases dangerous to the public health."

 

And third, whether a pandemic is a civil defense emergency or not, the Governor's COVID-19 orders violate the separation of powers of Article 30. And that's of the Massachusetts' Declaration of Rights.

 

So let's talk about the declaration of a Civil Defense state of emergency. The Civil Defense Act is a Cold War era statute. And to quote from it, its purpose is, "to protect the public peace, health, security, and safety, and to preserve the lives and property of people of the commonwealth resulting from enemy attack, sabotage, or other hostile action." In the interest of full disclosure, that is a direct quote. I did somewhat rearrange the phrasing, so I didn't have to read 14 paragraphs worth of statute for you. But that is the purpose of the statute.

 

Now, a little bit later on in the Civil Defense Act, I think it's in Section 5, the Act identifies triggering events that are slightly broader than just instances of enemy attack, sabotage, or other hostile action. And indeed, Governor Baker is relying on one triggering phrase in particular, and that's the one that says fire, flood, earthquake, or other natural causes. He views other natural causes to mean pandemics.

 

But he's the first governor in Massachusetts' history to take that position. There's been over a dozen epidemics and pandemics in Massachusetts since the passage of the Civil Defense Act. No one has ever made this argument. And our argument is straightforward enough. It's a statutory interpretation argument, ejusdem generis, where you have a statutory list like we do here. The cannon limits the general terms which follow the specific ones to matters similar to those specified in those specific terms.

 

And this is an essential tool of statutory interpretation because to rule otherwise would be to strip the more specific terms of any meaning whatsoever. And we know just from ordinary use of the term, diseases are conditions of the body. They are not like fires, floods, or earthquakes. They are not cataclysmic events of limited time, place, or duration that challenge not just -- or threaten not just health and safety but also infrastructure itself.

 

I will add too that the Civil Defense Act is a special law. It's not actually codified -- this is a little weird nuance, so I won't spend too much of your time with this, but I think it's an interesting issue, conceptually at least. Massachusetts has codified and uncodified laws. Codified laws go in the general laws. That's because codified laws have general applicability.

 

The Civil Defense Act isn't codified. It's a special law. It's a special law because it doesn't have general applicability. That's something that if you're more interested, if you're interested in talking about this, maybe we can do that during question and answer phase. Yet, I think it's an interesting nuance in Massachusetts law.

 

We also notice that the Civil Defense Act doesn’t apply here because the legislature has already spoken on the issue in the Public Health Act. The Public Health Act tasks the Department of Public Health, its commissioner, its counsel, local boards of health, and local government with the responsibility of protecting the public from diseases dangerous to the public health.

 

It's the Department of Public Health, not the governor, that -- and actually, I'll quote from the statute here, that "shall make the rules and regulations consistent with law for the control and prevention of such diseases as it deems advisable." Local boards of health also have significant authority. In the event of an infectious disease outbreak, local boards of health may, and I'm going to quote here again too, "provide such hospital or place of reception in such nurses and other assistance and necessaries as is judged best for his accommodation and for the safety of the inhabitants."

 

Local boards of health can create isolation hospitals. They can get warrants to forcibly quarantine a sick. They can even stop out of state travelers from entering, which, by the way, Governor Baker has usurped that authority explicitly in order -- I think it's Order 46, if I'm not mistaken. No, actually, Order 45, that is his travel ban. That is supposed to be a responsibility of local boards of health in border towns.

 

The Public Health Act also has numerous requirements for reporting and tracing a positive disease test. It is thorough. And believe it or not, regulations issued pursuant to the Public Health Act outline mitigation reporting of novel coronavirus by name. It says right in there, novel coronavirus.

 

The statute itself was aware that diseases needed to be addressed through local solutions. The statute delegates some authority to the Department of Public Health to promulgate regulations in preparation for such diseases. They are ready. They are on the ground. They are willing to do their jobs. It's just the governor has been preventing them from doing them.

 

And the last thing I'll say about this, but it's certainly not the least, is that with respect to the validity of a Civil Defense Act state of emergency, at least in this case, Massachusetts has one of the most robust separation of powers provisions in its Constitution in the entire country. And that's at Johns Adams' insistence. He even required inclusion of a phrase in the Constitution to explain the importance of the separation of powers as one that I think you're all familiar with, "to the end, it may be a government of laws and not of men."

 

That is an essential description of why it is so important to maintain the separation of powers. And in this particular case, we're talking about regulating health. And that means we're talking about the police power. And the Massachusetts Supreme Judicial Court has in the past held that the core police power is legislative and that it regulates public health, public safety, and public morals.

 

Think about that. Public morals? Surely, surely, a governor, an executive, is not free to regulate public morals. At best, or at worse, depending on your perspective, you need a legislature to openly debate these issues and pass the laws that the state needs passed. It's not up to the governor.

 

And so Massachusetts's legislature has delegated responsibilities to protect public health from dangerous diseases in the Public Health Act. It didn't delegate the lawmaking prerogative nor the police power to the governor, nor could it have. Where executive action deprives legislature of its full authority to pass laws, the executive action violates the separation of powers. That's exactly what Governor Baker has done here.

 

So to answer our second question presented -- that's our first question presented. And that's why we think that the declaration is invalid, and the orders issued pursuant to that declaration are also invalid and unenforceable.

 

Our second question presented -- our answer to it, I should say, is that many of the COVID-19 orders have violated and continue to violate the petitioners' federal and state constitutional rights to due process and assembly. But to be clear, and I want to be clear about this, the second question presented doesn't necessarily implicate all COVID-19 orders in Massachusetts.

 

Just a quick example. One of the Governor's orders suspended any requirements that DMV, Department of Motor Vehicles, transactions must be conducted in person. That's an example of suspending law. That's not something that is a requirement on people. That is not about their due process or assembly rights, so that wouldn't be implicated by the second question presented. We aren't challenging that.

 

We advance the argument by making two key points. First, of course, the petitioners have liberty interests in pursuing vocation of their choosing and property interests in their state and local licensing to operate. And at least up 'til March 2020, they ran lawful businesses and organizations. And I'm not so sure about that anymore, but they have property interests in state and local licensing.

 

These liberty and property interests have been burdened by unlawful exercises of governmental authority, and here's the kicker. Even if the Court decides that a pandemic is a civil defense state of emergency—we disagree with that—but even if they go down that road, the COVID-19 orders are still invalid to the extent that some of them dispense a law rather than suspend it.

 

And the second point, I'll discuss that in a little more detail in a second, but the second point here that we make is that the COVID-19 orders provide no due process prior to the deprivation of liberty and property interests. And I think the third point that we make, and with respect to peaceable assembly, the COVID-19 orders that restrict gatherings are not narrowly tailored. They really don't -- they're not narrowly tailored nor are they equally applied. I should highlight that as well.

 

So as a preliminary matter then, to discuss some of these in more details, the preliminary matter, I'm happy to answer any questions about this if you have any, but I'll assume for the purposes of our discussion here that we can assume that yes, indeed, the petitioners do have liberty and property interests, that's apparent. And let's just further assume that what the Governor has done in many of these cases is burden those interests, if not outright take them away.

 

So let's also assume for a moment that the Court does decide that a pandemic is a Civil Defense Act state of emergency. The problem that the Governor has and the reason why his COVID-19 orders would fail even in that circumstance is because at most, the Civil Defense Act permits the governor to suspend the law in a true civil defense state of emergency, okay. I won't go through the statute here, unless you're interested, but the Governor has a lot of authority under the Civil Defense Act. You can imagine, it's an act designed to protect Massachusetts from invasion, harm, insurrection, and sabotage.

 

So he has a lot of authority, and it says in there that he can suspend the law. So at most, he can suspend the law here. But what he's actually done with his COVID-19 orders, the vast majority of them, is that he's dispensed the law. He has applied the law to some and not to others. This is a very important distinction. If a law is suspended, it has no force or operation. Okay? If it is dispensed, then it no longer applies equally to all, and some get favored while others are burdened.

 

Just think about essential businesses or reopening phases. Obviously, all of this started in March with the Governor saying I've got a certain number of businesses, here's a list. They're essential. They can stay open with some restriction. If I decided that you're not essential, then you're not open. That's not suspending the law.

 

And think about the proper use of a Civil Defense Act state of emergency. Hurricane Laura, for example. Let's say it was in Massachusetts instead of in Texas or Louisiana. Hurricane Laura comes into Massachusetts. Well, yeah, it's a civil defense state of emergency. And you know what? Now, all businesses are closed, all churches, all schools, all organizations. There will be no protests out in the street. Nobody's going anywhere for the duration of this hurricane. It'll be gone in a day or so. It's going to destroy infrastructure. It's going to destroy lives. Let's keep Massachusetts safe or as safe as we can.

 

That would be an appropriate use. That would be suspension of the law. It would be a temporary issue and applied equally across the common law. That's not the case with what the Governor is doing here where he decides who's essential and who's not, where he decides which opening phase you get to participate in. You have no choice.

 

We have more than one petitioner who's actually been moved from one phase to another or part of one phase -- and part of one phase to another part of one phase. It's insane to me. And you see how these distinctions become so arbitrary.

 

One of our petitioners has a portion of his business that has videogames. Well, Governor Baker said videogames are phase four. But slot machines, if you have a casino, you're phase three. Phase four isn't open yet because phase four doesn't open until there's an effective treatment or a vaccine. So in other words, two events that are uncertain, your reopening is contingent upon those uncertain future events. They may never happen.

 

He's taken away your lawful business without any due process whatsoever. And that really does highlight this abomination of phase four, the lack of notice and opportunity to be heard in a meaningful time and a meaningful manner. These are all requirements of due process. The petitioners get none of this. No one in Massachusetts does from what I can tell.

 

Now, you would say in -- so I think it's important to simply note that just having that due process opportunity, having the opportunity to argue that I should be in a different reopening phase or that I can provide hands on learning for children in a safe environment, none of this necessarily means that the orders themselves are constitutional. But we know that there's at least no due process here. That much we do know.

 

The Governor has also reclassified, I think I mentioned that, the Governor has reclassified some of the petitioners, and so there's no fear in this case of anything being mooted because the Governor claims total authority to move you around if he sees fit.

 

And lastly, I'll say that the COVID-19 orders that relate to gatherings, social, economic, spiritual, what have you, they violate the right to assemble. People associate with others to advance beliefs and ideas. They're not necessarily political. They're not necessarily economical. They're not necessarily a part of an economic exchange either. The Supreme Court has recognized that all of these dynamics of association are important and protected by the Constitution in the federal case of NAACP v. Alabama in 1958. It's around the same time that the Civil Defense Act was passed.

 

Now, restrictions on the petitioners' right to assemble are just -- they're just so pervasive and they touch on every aspect of their lives. They can't go to their stores or they're limited in going to their stores, to the salons and their restaurants, their churches, their schools, indoor and outdoor venues or to recreate or to celebrate each other's triumphs more than each other's tragedies.

 

Obviously, there have been a lot of difficulties with funerals. And now they may not travel as they please. And with Order 46, the most recent order from the Governor which directly implicates— he was directly targeting, and openly admits it, he's honest about it. He's not trying to hide it—that he is targeting private BBQs, private parties.

 

These are no small matters and curtailing fundamental freedoms requires that the government prove that his restrictions are narrowly tailored to achieve a compelling government interest. He hasn't done so. He hasn't done so because he can't. There are many other ways Massachusetts could have achieved its goals, suppressing the spread of COVID-19, without infringing on the petitioners' right to assemble.

 

The orders don’t take into account whether an assemblage consists of people who do not have the virus, whether they're sufficiently distanced from each other, whether they masked or otherwise cornered off from each other with barriers, or any other of a host of factors that can make an assemblage low risk to the spread of COVID-19.

 

And, again, as discussed in the -- when we were talking about the due process portion, there's nowhere to go to prove to somebody to say look, my BBQ can really be safe, I promise, and demonstrate how you will make your BBQ safe.

 

Moreover, constitutionally protected conduct can't be punished. And I think this is a really, really important point because COVID-19 orders are criminal. This is straight from the Civil Defense Act. Obviously, again, if we've got sabotage or armed insurrection or invasion, and your governor has tremendous amount of power, well, he's also going to have to keep control. And so all of his orders under that act have criminal penalties.

 

Governor Baker has also included some civil penalties for some. But they're all criminal, and you can't criminalize constitutionally protected conduct. That should go without saying, but apparently, it doesn't. The orders arbitrarily established definitive numbers for gatherings of some events but do not apply to certain either protests or certain economic activity.

 

And believe me, I'm not suggesting that protests should be limited or that economic activity should be limited. I just don't see how any one First Amendment right is more important than another. I think they all should be graded on the same scale. These are all essential fundamental rights. And they should only be burdened if absolutely necessary.

 

And so what you end up finding with this sort of arbitrariness, the police can't help but arbitrarily enforce these orders in these sorts of things. So I guess, well, I guess since I began the call at the end, it leaves me without a good transition to questions here. But I will close by saying that I guess no matter where you're from, Massachusetts or elsewhere, simultaneously protecting your health and welfare is achievable but only if your state government abides by its constitutional structure and respects those limitations established by your Constitution. That's your best shot.

 

And so I think with that, I'd love to hear any questions you may have.

 

Greg Walsh:  Let's go to audience questions. Michael, it doesn't look like we have any questions off the bat. Is there any part of this case that you want to dive into more?

 

Michael DeGrandis:  I think one of the most intriguing aspects of the case -- well, I'll say this. We don't have the Governor's reply brief -- or I should say response brief yet. He won't be filing that until tomorrow. But we have a very quick turnaround. Our reply brief is due five days later on September 2.

 

      The Attorney General -- so the procedural dynamic of the case is interesting. The Attorney General actually approached us to negotiate a way to get our case on a fast track to Massachusetts' highest court. We had filed in Worcester County Superior Court. And the thinking here is that our case, because we don't challenge policy, we aren't suggesting that Governor Baker has bad intentions. He probably has good intentions. I'm quite sure he does. We're not saying that he's an incompetent administrator. I'm sure he's a very good administrator.

 

      What we're saying is that the office of governor itself is ill-suited to the task of lawmaking. And when he tries to branch out and take legislative authority unto himself, he's doomed to failure from the start. And so we're not suggesting that's his fault or that his policies are bad. What we are saying is that he's violated the separation of powers and that the Civil Defense Act doesn't apply to a pandemic.

 

      And so I think that that intrigued the Governor because there were dozens of other cases in Massachusetts, state and federal courts, and a lot of them challenged things like wearing masks and freedom of -- not expression, free exercise. That's what I was looking for. Free exercise issues and that's fine, of course, but I think that the Governor would rather have clarity on this fundamental issue that we're presenting where we're not challenging his motivations or policies. That's a unique feature of this, and we're going to have resolution really quickly.

 

Greg Walsh:  Michael, you mentioned early on that Massachusetts law has a little bit of a wrinkle. Are the Governor's actions at all different than the executive or medical authorities from other states?

 

      Or, actually, hold that thought. We have a caller.

 

Caller 1:  Oh, good afternoon. Thank you for taking my call. One of the things I've noticed, and it's felt like a personal thing. I'm scheduled to go to New York to go deer hunting with my dad, and I noticed they got a 14-day quarantine. Massachusetts has the same thing. Was this all applied to all the other states regarding what would appear to be an unconstitutional prison sentence?

 

Michael DeGrandis:  It would, and it does sometime seem like a prison sentence. Hence, the government is even approving that you're sick, much less you've done anything wrong, but no. So if we win in Massachusetts and if the travel ban in Massachusetts is declared invalid or unenforceable, it would only apply to Massachusetts.

 

      I would think that New York courts would take notice. And I would think that the cases in New York that are out there that are challenging New York's travel ban will certainly cite to the Massachusetts case. And I think it'll be very influential in that regard.

 

      But the impact that this case has on New York and across the country is important in the sense that it's persuasive, but it won't be controlling. And so I would expect some states would follow Massachusetts' lead, and some states would choose to go their own route.

 

Greg Walsh:  We appear to have lost that caller. I'll see if we can get them back.

 

      Caller from area code 727, are you still there?

 

Caller 1:  Can you hear me? I think I was cut off.

 

Greg Walsh:  Yes, sir. You're on the air.

 

Caller 1:  Oh, okay. Do you think the constitutional arguments would work in New York as well as in Massachusetts regarding freedom of assembly?

 

Michael DeGrandis:  Yeah. I would certainly expect that that would be the case, that good, sound reasoning from the Supreme Judicial Court of Massachusetts, I would think would be very persuasive to New York's highest court of law.

 

Greg Walsh:  Michael, I was asking earlier about the difference in the commonwealth of Massachusetts' executive actions in regard to COVID relative to other states. Do you have any thoughts on that given the pending legislation?

 

Michael DeGrandis:  Yeah. it's difficult to be on top of every other state's COVID-19 orders. There are a few which I'm moderately familiar. One of them is Rhode Island actually. So just to the south of Massachusetts, little Rhode Island, their Civil Defense Act is something -- it says even more clearly the title of it, something like military authorization defense aid. It makes it clear this is about the military.

 

      And so I was intrigued by that, but the legislature in Rhode Island had amended the statute just a couple of years ago to explicitly include epidemics and pandemics. So they really gave away the store to the governor of Rhode Island in that case. So Massachusetts, there are a few other states out there that have -- where governors are using a Civil Defense Act, but many of them are using statutory authority.

 

      That's not to say that the legislature may divest itself of its exclusive police power, power to make law to the governor. So to say, that's constitutional. That may not be, depending on the extent of what they are delegating or whether they are divesting themselves. But you see states like Rhode Island where it really appears that the legislature wanted nothing to do with it. So they're more than happy to let the governor take the lead on it. That's just not the case in Massachusetts.

 

Greg Walsh:  Well, it doesn’t look like we have any other questions pending. I'll remind callers that you can join the queue by pressing star and then pound. If nobody joins in the next 30 or so seconds, Michael -- here we go. Caller from area code 610.

 

Caller 2:  Good afternoon. Thanks very much. Just curious if any part of your argument is at all dependent on federal law. [Inaudible 31:42].

 

Michael DeGrandis:  Yeah. The --

 

Caller 2:  -- Fourteenth Amendment or if it's entirely dependent upon state law, just in terms of viewing its potential applicability outside the common law.

 

Michael DeGrandis:  Sure. That's a really good question. And we had early on -- I can't explain too much of my thinking regarding what issues we brought and why we didn't bring other issues. But I can say this much. Our case, while it does focus on a specific Massachusetts problem and Massachusetts law, certainly, our due process and free assembly claims are both under the Massachusetts Constitution and the federal Constitution.

 

      We even, in a footnote in our opening brief, shoot a little shot across the bow, I guess you could say, regarding the issue of separation of powers, really quite -- so the separation of powers, obviously being specific to the Massachusetts Constitution. But what we highlighted is that not only does separation of powers isn't necessary to preserve liberty interests to protect liberty but also because the United States Constitution, Article IV Section 4, guarantees our republican formed government.

 

      And so we want to remind the Supreme Judicial Court that this has much broader implications. If Massachusetts can let a governor just take control because there's a health emergency and legislate from Beacon Hill as he has, then you don't have a republican form of government anymore.

 

      So that is another serious federal constitutional issue. I think you are right to identify the Fourteenth Amendment just largely as having implications here. There's no way to escape it. Obviously, there are problems of arbitrary and capricious behavior here. Obviously, there are equal protection problems here. They just abound.

 

      But what we really wanted to do was we wanted to keep our argument very narrow, very clean, and very focused because we think that both our principal argument and all of our alternative arguments are still sufficient to take the entire regime of lawmaking by executive fiat down. And that's what we want to do. We want to be comprehensive with this, and I think we've done a pretty good job capturing that here. And I certainly hope that the Court agrees with me on that.

 

Greg Walsh:  Michael, is there anything else you want to add on or conclude with before we finish up today?

 

Michael DeGrandis:  I don't think so. I think we really covered it. And I appreciate everyone's attention and interest in this case. It will be interesting to see how the Court responds, especially, again, because it's our premise that the only way to keep Massachusetts healthy and safe in a pandemic is to follow constitutional process and let legislators legislate. It really is that simple and that straightforward.

 

Greg Walsh:  Perfect. On behalf of The Federalist society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.