Inside Augusta

New legislative proposal would curb emergency powers of Maine’s chief executive

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In a press statement released late Monday afternoon, House Minority Leader Rep. Kathleen Dillingham unveiled a new proposal meant to curb the emergency powers of Maine’s chief executive, likely a direct response to the actions Governor Janet Mills has taken to respond to the outbreak of COVID-19 in Maine.

The proposal would reform emergency executive power by requiring the governor to obtain the blessing of legislative leaders before taking certain emergency actions, as well as making the governor’s emergency declaration subject to regular review by lawmakers.

For the legislation to be considered this session, lawmakers would have to reconvene again in 2020. The legislature can only be called into a special session by the governor or by the presiding officers of each chamber with the support of members of both parties.

It is unlikely Governor Mills will relinquish her emergencies powers on her own accord, and the makeup of the legislature significantly reduces the odds of reconvening at the request of lawmakers and in defiance of the governor.

Maine law concerning emergency executive power is incredibly broad and was last amended in 2011.

“I don’t believe then, or when the Legislature adjourned in March, any member ever expected they would be abdicating their role in government to the Executive.”

The bill would require the governor to obtain the permission of the legislative council before declaring a statewide emergency or temporarily or permanently closing businesses or places of worship. It also holds that disaster areas declared by the governor must be the smallest political subdivison of the state as possible to properly address the emergency.

The following is the proposed language of the bill released by Rep. Dillingham Monday:

An Act To Amend the Governor’s Emergency Powers

Title 37-B: DEFENSE, VETERANS AND EMERGENCY MANAGEMENT

Chapter 13: MAINE EMERGENCY MANAGEMENT AGENCY

Subchapter 2: STATE EMERGENCY MANAGEMENT PROVISIONS

§743. Termination of emergency

2.  Limitation.  Any state of emergency may not be issued for a period of time longer than 30 days.  Any subsequent renewals of the same state of emergency must receive approval from 2/3 of the membership of the Legislature.  If rejected by the Legislature, the Governor shall issue an executive proclamation ending the state of emergency within 24 hours.  A new state of emergency may not be declared for at least 30 days without approval by the Legislature. The Legislature, by joint resolution, may terminate a state of emergency at any time. Thereupon, the Governor shall issue an executive proclamation ending the state of emergency.  

§742. Emergency proclamation

(6) Direct and compel the evacuation all or part of the population from any stricken or threatened area within the State, if the Governor determines this action necessary for the preservation of life or other disaster mitigation, response, or recovery. This action must be applied to the smallest political subdivision possible.  For state wide application the Governor must have approval of a majority from Legislative Council;

(8) Control ingress and egress from a disaster area, the movement of persons within the area and occupancy of premises therein. Occupancy limitations which would have a substantial impact on the operation of businesses in the State of Maine must be approved by a majority from Legislative Council;

(12) Take whatever action is necessary to abate, clean up or mitigate whatever danger may exist within the affected area. Any action which would directly result in the temporary or permanent closure of any businesses, or civic or religious organization must be approved by 2/3 of the membership of the Legislative Council.

Add to “1. Emergency Proclamation”, after “C”:

D. In dealing with a declared civil emergency, the following powers granted by this chapter may not be invoked:

(1) The eminent domain powers granted in section 821; and  

(2) The enforcement powers granted in sections 786, unless the Governor specifically invokes these powers by an order issued pursuant to a civil emergency proclamation and approved by 2/3 of the membership of the Legislative Council. That order must specify those emergency orders or rules that are enforceable pursuant to this paragraph and must further specify the enforcement activities emergency management organizations are to pursue. No enforcement action may be taken pursuant to this paragraph without publication of the order authorizing the action in a manner reasonably calculated to give affected persons adequate notice of the order or rule to be enforced, which may include publication on the Internet, and the sanctions to be applied.

2. Energy Emergency Proclamation

C. In dealing with a declared energy emergency, the following powers granted by this chapter may not be invoked:  

(1) The eminent domain powers granted in section 821; and  

(2) The enforcement powers granted in sections 786 and 829, unless the Governor specifically invokes these powers by an order issued pursuant to an energy emergency proclamation and approved by a 2/3 majority of the membership of the Legislative Council. That order must specify those emergency orders or rules that are enforceable pursuant to this paragraph and must further specify the enforcement activities emergency management organizations are to pursue. No enforcement action may be taken pursuant to this paragraph without publication of the order authorizing the action in a manner reasonably calculated to give affected persons adequate notice of the order or rule to be enforced, which may include publication on the Internet, and the sanctions to be applied.   [PL 2001, c. 353, §5 (AMD).]

About Jacob Posik

Jacob Posik, of Turner, is the director of communications at Maine Policy Institute and the editor of The Maine Wire. He formerly served as a policy analyst at Maine Policy. Posik can be reached at jposik@mainepolicy.org.

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