‘How is this constitutional?’ Understanding the limits of emergency executive power


On Thursday, May 14, Maine Policy Institute hosted an online panel discussion with three Maine-based lawyers of diverse experience and specialty examining the legitimacy of emergency executive power. The first question asked by moderator Matthew Gagnon was one that has been on many minds over the last many weeks, “How is this constitutional?”

Governor Janet Mills first declared a Civil State of Emergency in mid-March, followed by stay-at-home orders and numerous other actions that closed businesses and limited travel within the state. Dozens of amateur legal takes emerged from all sides, but Maine Policy wanted to cut through the clutter and understand it through the perspectives of distinguished local lawyers.

The legal panel included constitutional lawyer Patrick Strawbridge, Biddeford City Solicitor Keith Jacques, and Sigmund Schutz, a trial lawyer who operates a media law practice. The panel encompassed different backgrounds and legal specialities, so they were able to offer a broad spectrum of viewpoints for audience members to ponder the legal implications of the COVID-19 era in Maine. Among the topics discussed were government transparency, the constitutional and legal underpinnings of state emergency powers, and how businesses and municipalities can navigate these waters. 

On the question of potential legal challenges to Governor Mills’ emergency orders, the panel agreed that this route would be extraordinarily expensive. Mr. Strawbridge mentioned that the longer the state of emergency continues, presumably, the better chance a complaint would have. However, it is important to understand that Maine people, through their legislature, gave expansive powers to the governor in times of emergency long ago, and her exercising of this power is legal. 

That does not mean some aspects of her orders, or entire orders, cannot be successfully challenged in court, but Maine law does give broad authority to the governor during a state of emergency. Panelists agreed that it would be difficult to convince a judge in Maine to overturn the orders made with these powers given that courts have historically given deference to government action during emergencies.

When asked about the specific case of the opening of a Bethel restaurant, Sunday River Brewing Company, in defiance of the governor’s orders, the panel generally cautioned against this type of action for a few different reasons.

Mr. Strawbridge summarized the issue for Rick Savage saying that, “the thing about civil disobedience is it is disobedience. There’s a law and there’s a rule, and you are violating it; and you are accepting the consequences that come with violating it.”

Keith Jacques suggested that if a business decides to go ahead with civil disobedience, they would be wise to take every possible safety precaution to protect customers and employees from viral spread. If not, he suggested this would hurt the business owner’s cause. There are also liability concerns that arise for businesses that defy the orders.

Overall, the lesson one would glean from attending this event or listening to the recording was that a court challenge would not be as effective as the tried-and-true democratic process. Citizens must exercise their First Amendment rights to speak up and apply peaceful pressure on public officials to change policy. 

Regarding recent protests, petitions, and the like, the panel agreed that these sorts of actions would be the most effective means for people to express their distaste for the broad scope of governor’s powers, and the legislature’s abdication of its powers.

In time like these, the legislature is the governing body which may counterbalance an overreacting executive. Since the Maine Legislature adjourned in March to let Governor Mills take the reins of the state’s COVID-19 response, they have not exercised their constitutional power to propose bills that amend the laws governing emergency executive action, or to provide oversight of the governor’s actions.  

Recently, House Minority Leader Rep. Kathleen Dillingham of Oxford, released a proposal for reforming emergency executive power in a request to reconvene the Maine Legislature. It remains unlikely that Governor Mills, House Speaker Sara Gideon and Senate President Troy Jackson will move to bring legislators back into session this year during the state of emergency, enabling the governor to continue going it alone in coordinating Maine’s COVID-19 response.

Regardless of whether or not the legislature reconvenes in 2020, many Maine citizens will be mobilizing in the future to reform the scope of emergency executive power.


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