Commentary

Breaking down the bills to reform Maine’s emergency powers law

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As many Mainers question the appropriateness of a year-long state of emergency, in which a sole political official holds the power to unilaterally alter laws, rules, or regulations, with minimal public input, legislators have been equally frustrated. 

On Monday, the Committee on State and Local Government will hear a dozen bills to reform portions of Maine’s emergency powers law.

Currently, Maine law allows the governor to extend an emergency declaration every 30 days, absent a vote from both house and senate to terminate it. The Legislature may step in at any time, but the last year has shown us that politics will inevitably play a role. So, with one-party rule in Augusta, a state of emergency, and the expansive executive power that comes with it, continue in perpetuity.

Maine Policy Institute is offering testimony in support of all of these bills, and has helped hundreds of Mainers voice their support as well.

The batch of bills being heard Monday present many paths to substantially reforming the process. Many would require the governor seek legislative approval in order to extend emergencies. LD 14, sponsored by Sen. Pouliot of Augusta would require a two-thirds vote to extend an emergency every 30 days.

LD 980, sponsored by Rep. Sampson of Alfred, would shorten the initial window for unilateral executive emergency power from 30 days to 7 days. After that, “all emergency powers revert to the Legislature” which may extend it every 30 days with a two-thirds vote or terminate it with majority vote.

LD 1039, sponsored by Sen. Keim of Oxford would require a majority vote by the Legislature to continue an emergency every 30 days, but would also allow legislators to nullify specific emergency orders with a two-thirds vote, something that is not possible today.

Today, the governor retains emergency powers 30 days after the official state of emergency is terminated. LD 1019, sponsored by Rep. Bradstreet of Vassalboro, would require that orders issued by the governor automatically end after 30 days, or when the state of emergency ends. Mainers should not be subject to one-person rule for longer than absolutely necessary.

Other bills would better define the scope of emergency authority, like Sen. Keim’s LD 955, which would require that emergency orders be “narrowly tailored to serve a compelling health or safety purpose” if restricting constitutional rights, also known as the judicial standard of “strict scrutiny.” LD 955 would also require courts to quickly review challenges to emergency orders. LD 980 contains these provisions as well.

The process for declaring an emergency should be clear and consistent, no matter the current political makeup. By requiring periodic legislative approval, as many of these bills propose, the law would require legislators and the governor to convene in public, lay out the facts, and develop a consensus for governing in an extended emergency situation. It is crucial that this authority be vested primarily with the people’s body.

LD 131, sponsored by Rep. Dillingham of Oxford and LD 628, sponsored by Rep. Carmichael of Greenbush, would require a higher threshold of legislative approval for orders that treat businesses, nonprofits, houses of worship, and other private entities unequally. Rep. Dillingham’s bill would also require that declared emergencies be the smallest political subdivision of the state as possible to respond to the emergency, and orders mandating the closure of businesses, civic or religious organizations would require an affirmative vote of the Legislative Council.

None of these bills would take away the governor’s power to act quickly in situations where time is short; they all maintain an initial window under which the governor may declare an emergency and act to manage it. All but two of the bills would take effect 90 days after enactment, likely beyond the scope of the current emergency.

Maine’s emergency powers law exists to allow the governor to respond to an imminent threat. It’s meant to be used sparingly, and should not allow one person to control all of state government for a year or more. These commonsense bills simply require involvement and oversight of the executive branch by the legislative branch, as demanded by the separation of powers and co-equal branches of government. 

Should a governor be able to deem himself or herself fit to exercise near-absolute power for any period of time after that window? Governing by consensus should resume as quickly as possible, once an imminent threat is better understood or otherwise neutralized. The legislature — the people’s body — should always be an equal player in this process.

About Nick Murray

Nick Murray, of Cornish, currently serves as Policy Analyst with Maine Policy Institute, writing, researching, and bringing Mainers together over the issues facing the state. Previously, he served as Outreach Coordinator, planning events to spread the word about Maine Policy's work to new audiences around Maine.

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