Monday, January 30, 2017

Order, Order! Executive Order!

Executive orders as issued by a governor are not statutes like those passed by state legislatures, but do have the force of law in a similar way to the perhaps more familiar Presidential executive orders issued on the federal governmental level. State executive orders are based on existing constitutional or statutory powers of the governor and do not require any action by the state legislature to take effect.  In Massachusetts, each executive order cites the legal basis for the governor’s authority in issuing the order.

The first formal executive orders issued by a Massachusetts governor were during the administration of the 55th Governor of the Commonwealth, Leverett Saltonstall, in 1941. His very first executive order, Creating a State and Local Civil Defense Organization and Defining its Functions, was issued on December 29, 1941 in response to the immediate needs required in the Commonwealth in order to safeguard lives and property due to the declarations of war being made on both Japan and Germany by the United States after the bombing of Pearl Harbor.  

Governor Saltonstall (1939-1945) and his successorsMaurice J. Tobin (1945-1947) and Robert F. Bradford (1947-1949)would issue together a total of 99 executive orders in what would come to be known as the “first series” and are cited as “1 EO [number].”  All of these executive orders in this “first series” would cite their legal basis as either the An Act to Provide for the Safety of the Commonwealth in Time of Military Emergency (a.k.a the Commonwealth Emergency Defense Act of 1941 (Chapter 719, Acts of 1941) and/or An Act to Provide for the Safety of the Commonwealth During the Existing State of War (Chapter 13, Acts of 1942). The executive orders issued in this “first series” were eventually revoked by later executive orders in the same series as they were deemed no longer “necessary or expedient for meeting any existing emergency.” The final executive order in this first series, “1 EO 99” was issued on June 27, 1947.

Three years later Governor Paul A. Dever (1949-1953) would issue the first executive order in the “second series,” 2 EO 1 on September 8, 1950. (This second series still continues to this day.) As with the first series of executive orders, the focus was again on meeting immediate civil defense needs in the Commonwealth due to the onset of the Korean War in June of 1950. Governor Dever and his successorsGovernor Christian A. Herter (1953-1957), Governor Foster Furcolo (1957-1962), and Governor John A. Volpe (1961-1963)would cite the legal basis for their authority to issue their ensuing executive orders as An Act to Provide for the Safety of the Commonwealth During the Existence of an Emergency Resulting from Disaster or from Hostile Action (Chapter 639, Acts of 1950). This same 1950 Act that gave the governor the power to provide for the common defense or the common welfare of the citizens of the Commonwealth, is still cited frequently as the legal basis for authority in executive orders that are chiefly issued in response to the need to declare a state of emergency due to severe weather conditions or terrorism incidents.

Further on  into the 1960’s the necessity for executive orders to be issued to respond to exigencies in times of war and military emergency decreased and governors increasingly used their executive order powers to set forth policies and procedures by invoking and citing the authority of the governor’s position of “supreme executive magistrate” given in the Massachusetts Constitution (Chapter II, Section I, Article I).  The entire collection of Massachusetts Governor’s Executive Orders can be found here on the Massachusetts Court System website or in the State Library’s DSpace repository here.  

Judy Carlstrom
Technical Services