THE MIGRANT SHELTER CRISIS has brought our state’s problematic emergency law back into public view. Our Legislature somehow shrugged in response to an unprecedented flow of migrants and asked Gov. Maura Healey to change — all by herself —  a marvelous law it once passed with pride. 

Healey cannot change our first-in-the-nation “Right to Shelter” legal guarantee all by herself, without invoking a formal emergency under the 1950 Civil Defense Act. House Speaker Ron Mariano advised her to do just that in October. The Civil Defense Act, written by a Legislature concerned with the threat of nuclear war, was only used for severe storms until recent years. After using it for storms himself —  former Gov. Charlie Baker then quietly used it to address the Lawrence gas explosions, and then not-so-quietly for many COVID-related measures.

Now that everyone has seen a previously obscure law that lets the governor confiscate any property, eliminate red tape, and change any law — it cannot be unseen. The way that Baker used these powers, the logic used by the Supreme Judicial Court when it upheld them for the pandemic, and the wording of the Civil Defense Act itself — all make its continued use more likely.

However, the primary reason we will see more unnecessary use of these emergency powers is that Massachusetts politics has problems that will increase demands for executive actions. We have a Legislature that is popular, unproductive, and invincible. 

We have chronic policy problems, such as housing, climate, transit, and childcare— that we are not making much progress on. 

We have a Commonwealth of cities and towns that often undermines solutions to those chronic problems at the local level, and they send legislators to Beacon Hill who do not want to contradict officials back home. On top of that, America has a national politics that has produced more and more executive orders, and this will most likely prompt governors to start doing more of the same.

The current migrant shelter emergency is exactly the kind of issue that will keep tempting governors. A crisis appears, and the laws we have are not designed for it. Immediate executive action is needed, and the media looks to the governor, who starts working on the problem with the powers and authority she has. 

In the migrant shelter case, if the Legislature was agile, it would have quickly passed a law to provide more money, to create a comprehensive program for families to take migrants into their homes, or perhaps change the “Right to Shelter” law to distinguish between long-time families who become homeless and a huge wave of migrants flowing into a state that cannot adequately house the people already here. 

None of that happened.

Healey held a press conference in August and called the situation “an emergency,” and her staff added this verbal declaration to the state’s emergency action web page (without an end date) at the top of the list of previous emergencies that involved the Civil Defense Act. While many in the press were initially uncertain, it became clear that she did not invoke any powers or issue executive orders. This is confirmed on the state’s web page that lists all of the executive orders Healey has issued, as well as the state library’s collection for the office of the governor, which tracks all of its published records.

Weeks later, Speaker Mariano said Healey should invoke the Civil Defense Act to change the shelter law. Why, you might ask, would he do that instead of prodding the House to change the shelter law itself? The answer, once you think about it, is fairly obvious.

It would be politically unpopular for the Legislature to say Massachusetts no longer guarantees shelter, and the details of such a change would be messy. Besides, our confident Legislature was leisurely working on more pleasant things. Best leave it to Healey to sort out the problems and deal with the complaints. This outsourcing to the executive branch is a key feature of what has gone wrong. And we have seen it before. 

The Civil Defense Act certainly undermines legislative power, but it actually helps legislators. We can look both backwards and forwards in time to see the logic of this. 

In 2018, the city of Lawrence experienced dangerous gas explosions. Baker responded quickly, and used the Civil Defense Act to help put out the fires, and marshal resources and cut through existing government processes to solve problems, such as finding enough plumbers to do the work. If you drove by the area and saw fleets of trucks and specialized vehicles at work, you saw that Baker had a lot to manage — and he had to do it more quickly than the Legislature could act. 

However, few people had any idea how long that declared emergency was in place, which endured long after the fleets of trucks departed. Some were shocked to discover that the emergency declaration was in place for nearly two years. 

There is no such thing as a two-year emergency. What we saw was a Legislature uninterested in taking over the problem or changing relevant laws to get Lawrence back on its feet. Baker was doing a good job, and this let  lawmakers focus on their own priorities.

Baker’s COVID emergency orders had a similar, absurd duration. They were in place long after the Legislature was back in session and dealing with regular business. Legislators could have taken over management of the problem, but it was easier to just let Baker stand in front of cameras and defend the unpopular edges of his orders. Not only did the Legislature not complain much, it even kept the State House closed longer than any other state in America, despite Massachusetts leading the way in public health resources and vaccination rates. It was all part of the same indifference that keeps Massachusetts living in a series of policy emergencies.

Imagine what could be done on issues like housing, climate, and transit with this policy-making super-weapon in clever hands. Imagine its use by a governor who was not as ideologically averse to using it as Baker was, and who felt more pressured by progressive activists, who refer to a wide range of issues as emergencies.

In fact, some of Baker’s orders, like the one enabling broad use of telemedicine, were things that people agreed should have already been in place. That idea lit lightbulbs in the heads of many activists. For example, housing advocates wanted Baker to drastically and permanently end most evictions of renters, something they had wanted before COVID. 

Two features of the Civil Defense Act would appear to prevent future abuse, but have not, and will not. 

The first protection is that the Legislature can, at any time, vote to end any emergency declared by the governor. This was cited both by the Supreme Judicial Court and analysts as a reason the law wasn’t dangerous. But the law isn’t just outdated because it was created in a time of nuclear war paranoia, it also was unimaginable then that we would one day have a Legislature uninterested in protecting its own power. 

Whether or not the Legislature decides to meet and vote to stop an emergency declaration is no longer a matter of law, but of politics. Did anyone call for the end of the Lawrence gas emergency? Of course not. The Legislature has never voted to end use of the Civil Defense Act.

What if the governor declares an emergency, and then writes dramatic orders that the Legislature privately agrees with, but would never want to vote for? Wouldn’t they just let the governor do that? It’s not difficult to imagine how this could happen.

It’s 2026. Climate change keeps worsening. It is clear that America and Massachusetts are not going to meet emissions reductions targets, and many people are upset about it. But drastic new cuts in emissions and forcing people to upgrade their properties are politically unpopular. 

Suddenly, a massive, climate-driven storm devastates Greater Boston. Our governor, of course, uses the Civil Defense Act to declare an initial emergency. Then she sees how the damage could have been reduced by costly private-sector mitigations that were not required by law. She decides that a series of long-overdue changes in state law are needed. She then writes the orders to change them, and then she dares the Legislature to nullify them —  all while thunderous applause for her is heard across the state. It’s not hard to predict the outcome of that challenge. (The endgame would be negotiating an end to the climate emergency by turning executive orders into legislation, just as Baker did before ending the COVID emergency.)

The other part of the law that is supposed to rein in governors is that it can only be used for enemy attack, sabotage, riots, fires, floods, earthquakes, droughts, or other natural causes.

To see how weak this is, look at the Lawrence gas emergency. After the initial fires were put out, what was the justification to keep the emergency in place? None. Yet no one cared.

Certainly, climate mitigations could fit easily into “natural causes.” So can other actions. Take the migrant crisis. That would not seem to fit the list, though Speaker Mariano did not appear to care. But it could fit! Any anthropologist will tell you that large migrations of people have been common throughout humanity’s entire 200,000 year history. In fact, it is usually climate, natural disasters, and “other natural causes” that propel these movements of people. Even today, many migrants are fleeing to America from significant climate problems, including droughts and destruction of natural resources. It wouldn’t take a lot of work to describe the migrant crisis as resulting from a “natural cause” and that is how Healey could explicitly use the Civil Defense Act to modify the right to shelter law.

Note that Healey did not actually invoke the Civil Defense Act for the migrant shelter crisis, but merely leaned on its authority and made the change anyway. This led to her being sued, and that was temporarily resolved by an unusual decision by a Superior Court judge. Judge Debra A. Squires-Lee concluded that it was the Legislature’s fault for not providing more funding, and that it was their job to defend their own powers. She said therefore, the plaintiffs did not have proper standing to make a challenge. She ruled against them for that reason and Healey’s changes to the shelter law remain. 

Notice that Healey trying to use the Civil Defense Act without invoking it is not an oversight or misunderstanding. She, as attorney general, argued before the Supreme Judicial Court in defense of Baker’s use of the Civil Defense Act. This sleight-of-hand is a choice.

Can anything be done about the law? There have been previous efforts to change it. There was a Senate bill in 2009 to make changes relevant to a disease outbreak, and it proposed that the governor renew use of the Civil Defense Act every 90 days. It even passed the House. However, many conservative legislators opposed it as government overreach, including, ironically, then-Shrewsbury Rep. Karyn Polito, who would go on to be part of the team that certainly did a pretty big reach with the Civil Defense Act. Yet that bill was never signed by former Gov. Deval Patrick.

Since that time, there have been other attempts by Republicans to change the law, though with little support. In 2021, Rep. Marc Lombardo — who opposed Baker’s COVID emergency orders — filed a bill that would limit emergency orders under the Civil Defense Act to 30 days, and then would require a three-fifths vote to continue it. 

It is tempting to think requiring explicit legislative re-authorization would be a good idea. There are two problems with this. First, we do not know what kinds of emergencies lay ahead. Advances in technology may create terrible problems we cannot see now, and perhaps in a time of crisis, the Legislature could not meet in 30 days. Second, a Legislature that actually wants to outsource messy policy problems might just keep passing extensions without the public even noticing them. 

A better reform would be to change the wording of the Civil Defense Act to make it clear that it was meant to handle individual events, and cannot be used for chronic problems, even if they become emergencies. However, even that might not be ideal. As we see with human health, an untreated chronic problem can become a series of real emergencies, and treating the underlying problem becomes part of what doctors in the ER are forced to do if the patient doesn’t receive non-emergency care. In the end, someone has to save the patient.

Upon a big emergency power flex by a governor, we would probably see a lawsuit from some conservative group, as we did during COVID. But the Supreme Judicial Court, in the COVID challenge, had a hard time agreeing that the Legislature was being marginalized if that body couldn’t be bothered to hold a vote to end the emergency. It would probably come to the same conclusion again. 

There is no ideal solution other than the Legislature becoming more agile and more accountable. It has to care about its own power and defend it from the executive branch. Yet it is already enduring so much pressure on it! Primary battles, the effort by the auditor to oversee it, endless inappropriate ballot questions, and armies of activists assailing it over transparency and a failure to embrace bolder solutions. Our governors don’t seem to have any effect on legislators, either. A talented Republican governor made outsourcing through the Civil Defense Act more attractive, not less. A new Democratic governor has not been successful in getting them to think bigger or more creatively.

Unless we get large structural reforms that make legislators feel more accountable, the desperate drive for more executive authority will grow, and we will see more emergencies declared. The management of our hardest problems will shift from the people’s representatives to governors who are even more insulated from public opinion. This isn’t how our constitution is supposed to work. 

Do we really want to be like Washington, where executive actions and media focus on the president has made the presidency more powerful and weakened the Congress? The activists in our state who are now accustomed to asking the president to use executive orders to solve persistent policy problems will eventually start asking our governors to do the same.

During the pandemic, many people saw the Civil Defense Act as the most powerful policy-making weapon in Massachusetts. It is a sword that can cut through many things in the way of solving serious problems. If the incentives of our legislators do not change, it will not stay sheathed. 

Ed Lyons is a political writer who lives in Swampscott.