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States are moving to reform emergency executive power, but not Maine

On June 2, the Maine House of Representatives defeated eight bills aimed at reforming the use of executive emergency powers. 

The votes on all eight pieces of legislation, which were sponsored by Republicans, were taken in succession and mostly split along party lines. The Democratic majority almost unanimously opposed all eight bills.

Most of the legislation was focused on limiting the amount of time that the governor can extend a state of emergency. Currently, Maine law limits a state of emergency to 30 days, but does not limit the number of times a governor can extend the state of emergency. Since issuing a proclamation of a state of civil emergency on March 15, 2020, Governor Mills has issued 15 orders extending it. 

Several pieces of the proposed legislation would have limited the governor’s ability to constantly renew a future emergency. Others would have given the legislature greater oversight over the governor’s ability to use executive orders to issue rule changes that last beyond the termination of a state of emergency.

L.D. 985, RESOLUTION, Proposing an Amendment to the Constitution of Maine To Require Legislative Approval of Any State of Emergency Lasting Longer Than 60 Days

If passed, this resolution would have amended Maine’s Constitution and prohibited the governor from extending a state of emergency beyond 60 days without approval by the legislature every 60 days.

L.D. 1237, “An Act To Allow the Governor To Declare a Limited State of Emergency for Federal Aid Purposes”

If passed, this bill would have allowed the governor to declare a state of emergency solely to allow the President of the United States to declare a major disaster in some parts or in all of Maine, making federal funds available. Doing so would have prohibited the governor, pursuant to that declaration, from using the same powers granted to the governor under a state of emergency declared because of a civil disaster by Revised Statutes, Title 37-B, section 742, subsection 1.

L.D. 131, “An Act To Amend the Governor’s Emergency Powers”

If passed, this bill would have required any evacuation order given under the governor’s emergency powers to apply to the smallest political subdivision of the state possible to respond to the emergency. A statewide evacuation order would have required the approval of the legislature.

The bill also required that executive orders limiting occupancy or closing businesses be approved by a majority in the legislature. Additionally, it would require that any closure of business, civic or religious organizations be approved by a 2/3 majority of both houses of the legislature.

It would have also prohibited the governor from invoking eminent domain powers and enforcement powers without approval from a 2/3 majority of both houses of the legislature.

Further, it would have prohibited the governor from proclaiming a state of emergency for longer than 30 days. Renewing the state of emergency would have required the approval of 2/3 of the legislature. If the renewal was rejected, the governor would have had to issue a proclamation ending the state of emergency within 24 hours. If defeated, a new state of emergency could not be declared for an additional 30 days without the approval of the legislature.

L.D. 608, “An Act Regarding the Governor’s Emergency Powers”

Like LD 131, if passed, this bill would have required the governor to convene the legislature in order to extend a state of emergency beyond 30 days. If the legislature did not approve extending the state of emergency, the governor would have been required to issue a proclamation ending it and been prohibited from issuing a similar, subsequent state of emergency.

Additionally, if after a state of emergency was declared, the governor issued a rule or order that would be in effect longer than 30 days, the governor would have been required to convene the legislature, which would vote to approve whether or not to extend the rule. 

Additionally, the bill would have limited the governor’s authority to declare a state of emergency in a county unless that county’s board of commissioners had already declared that a disaster or civil emergency existed.

L.D. 1019, “An Act To Promote Transparent Emergency Management”

If passed, this bill would have required that any order issued by the governor following the declaration of a state of emergency expire 30 days after the order was issued, when the governor or legislature terminated the state of emergency, or when the governor proclaimed a different state of emergency, whichever came first.

L.D. 1137, “An Act To Limit the Governor’s Emergency Powers by Requiring a Two-thirds Vote of the Legislature To Continue an Emergency after 90 Days” 

If passed, this bill would have required the governor to convene the legislature if a state of emergency were in effect longer than 90 days. Unless a 2/3 majority in each house of the legislature voted to approve an extension,  the governor would have to issue a proclamation ending the state of emergency and would have been unable to declare a similar, subsequent state of emergency.

Additionally, if a rule or order issued by the governor during a state of emergency were in effect longer than 90 days, the governor would be required to convene the legislature. Extending the rule would require a 2/3 majority vote from both houses of the legislature.

L.D. 1142, “An Act To Prohibit the Unequal Restriction of Essential Businesses during a State of Civil Emergency”

If passed, this bill would have defined any private business that employs people in the state of Maine as an essential business and would have prohibited the governor from restricting one essential business without restricting all essential business in the same manner.

L.D. 1220, “An Act To Require a Two-thirds Vote of the Legislature Every 2 Weeks To Maintain a State of Emergency Declared by the Governor”

If passed, this bill would have prohibited a state of emergency from extending beyond 30 days unless approved by a 2/3 vote by the legislature every 14 days beyond the initial 30 days. If the legislature were not in session, approval would have come from a poll of the members.

States across the country considering similar reforms

Maine is not the only state where bills aimed at reforming how the executive can use emergency power have failed. In 2020, legislative chambers in 28 states introduced bills to limit executive use of power during the COVID-19 pandemic. So far in 2021, legislative chambers in 45 states have introduced at least 300 bills or resolutions to limit use of executive power. 

In 2020, 10 states adopted or enacted legislation that limits emergency powers and gave legislatures greater control over how emergency funds received by the federal government were disbursed.

Many of these are similar to the emergency reform legislation proposed by Maine lawmakers that were recently defeated.

Arkansas enacted a law requiring that funds released from its COVID-19 Rainy Day Fund have prior approval of the Speaker of the House of Representatives, the majority and minority leaders in the House, the President Pro Tempore of the Senate; and the majority and minority leaders in the Senate. 

Kentucky enacted legislation requiring the governor to declare in writing the date on which the state of emergency declared in response to the COVID-19 pandemic has ceased. Failure to do so before the General Assembly’s next regular session allows the legislature to determine when to end the state of emergency.

Michigan adopted several laws that allow the Speaker of the House and the Senate Majority Leader to begin legal action on behalf of their respective houses and challenge the governor’s actions taken during the COVID-19 pandemic.

In 2021 so far, at least 14 states have adopted or enacted legislative measures along the same lines, and two more state legislatures have sent reform bills to their respective governors for signature.

Most legislative attempts, both in 2020 and 2021, however, have failed. The majority were never passed by state legislatures, in some cases because those legislatures adjourned. Others have been carried forward into 2021 legislative sessions and are still pending. In several instances, governors vetoed bills that were passed by the legislature and would have limited their power. 

Executive power reform efforts have been most successful in states where both the legislative and executive branches are controlled by Republicans. 

In 2020, 4 reform bills were passed by states where both the legislature and the executive were controlled by Republicans. In 2021 so far, 17 bills have been passed by Republican-led states, and one additional bill has been sent by the Texas Legislature to the governor for signature.

States where both the legislature and the executive are controlled by Democrats passed 2 reform bills in 2020 and have passed 5 so far in 2021.

In states where there is a partisan split between control of the executive and the legislature, 8 bills were passed in 2020 and 6 have been passed so far in 2021.

Of the states that have passed executive emergency power reform, only Montana has had a change in partisan control of state government. In 2020, Democrats controlled the executive branch and Republicans controlled the legislature. In the 2020 election, Republican Steve Daines defeated Democratic incumbent Steve Bullock in the gubernatorial election. This gave Republicans control of the executive branch, as well as the legislative. 

Since gaining control of both branches, Montana’s legislature has introduced 19 bills aimed at reforming emergency powers in the state. Five of these have been enacted, one was vetoed by the governor, 12 have failed and one more is still pending. No bills aimed at reforming emergency powers were introduced in 2020.