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How to reform emergency executive power, in Maine and the nation

At the peak of state-ordered lockdowns in response to COVID-19, 316 million Americans across 42 states lived under a stay-at-home order. Millions witnessed never-before-seen usage of their governor’s emergency powers, while some wondered how a country built on individual liberty could fall so far from its founding ideals.

To better frame this crisis of leadership in America, Maine Policy developed a first-in-the-nation scorecard of every states’ emergency powers law. The analysis found that far too many states fail to strike an adequate balance between the legislative and executive branches to prevent runaway executive authority under declared states of emergency.

Every state received a numerical score between 1 and 20 across five categories for a total score of up to 100 points. The highest score denotes the most stringent executive powers, allowing for the greatest accountability from the people’s branch, the legislature. The lowest score denotes the weakest check on executive powers and the greatest potential threat to liberty.

While governors and executive officials should have the ability to respond quickly to an imminent crisis, the ultimate responsibility for determining public policy rests with state legislatures. There is a reason that Congress is the first branch listed in the U.S. Constitution. 

To this end, state legislatures must assert their constitutional duty to provide a check on their governor’s power, even in emergency situations.

The worst-ranking states overall are Vermont, Washington, Ohio, and Hawaii because they grant their governors the sole authority to determine when and where an emergency exists, and when it no longer exists. Nearly one-in-four states have this arrangement. 

Kansas and South Carolina place 1st and 2nd, respectively, because the governor must earn legislative approval for an emergency declaration to continue past the first 15 days in both states. In Kansas, the legislature may only approve one 30-day extension after the initial 15-day period, and requires a unanimous vote of the State Finance Council for successive extensions.

Maine receives an overall score of 51 out of 100, landing among the middle of the pack. This is largely because the governor has the sole power to initiate a state of emergency, while the legislature may only step in to terminate it with a majority vote. This is not the worst possible policy arrangement, but under single-party rule, little incentive exists for legislators to hold the governor accountable.

More than a dozen bill requests have been submitted in Maine to reform the governor’s authority in emergencies. Only two have become official bills as of yet.

No matter who sits in the Blaine House, Maine lawmakers should pass bills like Rep. Kathleen Dillingham’s LD 131. It would require any emergency actions that “directly result in the temporary or permanent closure of any business or civic or religious organization” receive a two-thirds vote from the Legislative Council, a 10-member panel of legislative leadership. Similarly, executive actions that impose “occupancy limitations that would have a substantial impact on the operation of businesses” would require the Council’s approval as well.

The legislature could also allow for the nullification of specific orders from the governor, as New York does. Currently, Maine lawmakers only hold the power to terminate the emergency declaration itself.

Other substantial, liberty-strengthening reforms include requiring a legislative concurrence vote to extend emergency declarations, prohibiting officials other than the governor from making emergency orders, ensuring orders are “narrowly tailored,” and that challenges to emergency orders receive expedited judicial review. This would signal to courts that they should weigh any orders against the liberty of the aggrieved party, not simply chalk it up as a “political question” to punt back to the legislature.

The scorecard and analysis also highlights various quirks in states’ emergency statutes, some good and some bad.

Seven states allow either the governor or the legislature to declare a state of emergency. Only one state, Louisiana, allows an emergency to be terminated with a majority vote of either legislative chamber.

While seven states do not provide the governor authority to alter or suspend either statutes or regulations, 34 allow the governor to do so in the course of managing an emergency. North Carolina allows the governor to create new statute and regulations within an emergency.

Vermont earned the lowest score of all because it also allows certain emergency orders (relating to energy transmission or the environment) to remain in effect up to 180 days after the emergency has been terminated.

For those who value constitutional government, the separation and diffusion of power between the co-equal branches is paramount. As the American founders warned, concentrated power most certainly will bend towards tyranny.

Read Maine Policy’s full analysis on every state’s emergency powers law here.