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For how long will Maine be under a civil state of emergency?

On March 15, Maine Governor Janet Mills declared a civil state of emergency enabling her use of emergency powers to enhance and expedite the state’s response to the outbreak of COVID-19. This designation was renewed on April 14, extending the state of emergency another month until May 15. With the extended emergency set to expire in one week, it’s worth asking: When will the state of emergency in Maine come to an end?

Before adjourning in March, lawmakers passed LD 2167, a bill that gave Governor Mills new powers to direct the state’s emergency response. These new powers include waiving compulsory attendance requirements in schools, adjusting timeframes and deadlines imposed by state, county and municipal laws, suspending the termination of residential electricity and water services, modifying or suspending requirements related to professional licensing, and adjusting the timing and manner in which the June primary elections are conducted.

Under existing state law, the governor already had a vast array of powers under a state of emergency, including suspending or limiting the sale of alcohol, explosives and combustibles, directing or compelling the evacuation of people from any area, and controlling the ingress and egress to and from disaster areas, along with the movement of people within the disaster area, among other broad powers.

It is under these existing powers that Governor Mills can restrict or limit business and travel activity within the disaster area, which the governor contends is the entire state.

On April 28, Governor Mills released her slow, multi-phase plan to reopen Maine’s economy. The plan has been heavily scrutinized by various businesses and industry groups who feel it unnecessarily inhibits their ability to earn a living given the data and trends related to the spread of the coronavirus in Maine. Many businesses have stated they can safely reopen their doors while following official guidance to stop the spread of COVID-19, and are willing to implement any safety precautions if it means they can be open for business.

Nonetheless, the governor’s plan calls for a gradual reopening of the state economy, with different sectors being permitted to open at different dates that seemingly follow an arbitrary timeline. 

On May 1, hair salons, barber shops, inland state parks, auto dealerships and car washes, among other businesses, were allowed to reopen. On June 1, restaurants, fitness and exercise centers, nail salons, retail stores, coastal parks and lodging becomes available to Maine residents and out-of-staters who follow the 14-day quarantine requirement. In the third stage of the plan, which encompasses the months of July and August, bars, tattoo parlors, massage facilities, hotels and other lodging is set to reopen.

What does this mean? For the governor to restrict business and travel activities into the month of August, she must retain the power to make such orders. This means its likely the governor will continually extend the state of emergency in Maine through the summer months, until August 15 or September 15, perhaps longer.

The only way to prevent Governor Mills from exercising this power is for the Maine Legislature to reconvene and pass a joint resolution terminating the state of emergency. The legislature, which adjourned earlier this year, can only reconvene for a special session if called in by the governor or by the presiding officers – the Speaker of the House and the President of the Senate – with the consent of a majority of the members in each party.

In other words, Mainers should prepare for a summer of single-person rule in Augusta. It seems highly unlikely that the presiding officers will call lawmakers back into session against the governor’s wishes, and why would the governor relinquish her emergency powers?

Fortunately, the governor has signaled in recent days that changes are coming to her reopening plan, though we do not know yet if the overall timeline she has set will be adjusted. Nonetheless, Maine people will not have a say in the state’s economic recovery unless their representatives have a seat at the table.