How to end the endless state of emergency

By Matthew Gagnon

Earlier this week — Monday to be exact — we passed the one year anniversary of Gov. Janet Mills declaring a state of emergency in response to the coronavirus pandemic. Since then, the state of Maine has been governed almost exclusively by the executive orders of one human being. 

I think most people would agree, whether you like the governor’s orders or you hate them, that the lawmakers who wrote Maine’s emergency provisions probably didn’t intend this kind of situation to happen.

Title 37-B of Maine state statute, Chapter 13, Subchapter 2 specifically outlines the process under which such emergency declarations are declared. We are currently in a state of civil emergency, which is one of three separately defined emergencies in Title 37-B. 

And, of course, it isn’t well defined what a state of civil emergency even is. Part 1, paragraph A says “whenever a disaster or civil emergency exists or appears imminent, the Governor shall, by oral proclamation, declare a state of emergency in the State or any section of the State.”

The word “disaster” contained in that sentence is important. It implies an imminent, acute problem such as a hurricane, flood or perhaps even a historic ice storm. It does not suggest a prolonged, never-ending state of emergency with no check on executive authority.

I’d be willing to wager a guess that the legislators who drew up this law didn’t really see this kind of situation coming. If they did, I think they would have designed it differently.

Why do I think that? Well, let’s start by noting that there is a suspicious lack of any kind of limitation on time, or established check or balance in the system. And yet later in the same chapter of law — emergency proclamations — there is a specific provision made for that very concern.

In fact, paragraph F states explicitly that if an order issued by the governor is in effect longer than 90 days, the governor shall order the Legislature to convene.

Pretty clear. So why the difference?

We can only speculate, but I’ve got a decent guess. The energy emergency section is to be evoked when “an actual or impending acute shortage in energy resources” threatens Maine, which is an obvious response to the energy crisis of the 1970s. 

Owing to that extended crisis, lawmakers thought it prudent to provide a mechanism for legislative involvement so that if a situation lasted long enough, Maine’s governor could not simply govern the state by him or herself.

But because the state of civil emergency has no such provision, here we are one year later and the state of emergency is still in effect. The Legislature could do something about it, but to this point has not demonstrated any appetite to limit the governor’s authority.

Last week, lawmakers met in person in Augusta for the first time this year, despite the fact that other Legislatures across the country have been successfully meeting and acting since early summer of last year.

Rep. Peter Lyford and Sen. Rick Bennett used the occasion to submit joint resolutions aimed at terminating Mills’ state of emergency. While those efforts were unsuccessful, the resolutions did earn support from independents in the House and three Democrats in the Senate. 

For those who voted to continue the emergency, I ask one simple question: What would you have done if the governor was a Republican? 

You see, that’s the standard we should all operate under. Imagine the person you would least want in power is in office. Are you comfortable with how much authority a law gives that person? If the answer is no, you need to make a change. If yes, you’re in a good spot. 

I think we all know that if Paul LePage was in office right now, the Democrats would have moved to strip him of his authority long ago. 

There is, however, a way to reform the system to actually make everyone happy. Here’s what they should do. 

The Legislature should convene, and then immediately vote to end the state of emergency. They should then create a new type of emergency — a “public health emergency” — which would empower the governor to act, but would establish certain limitations on her authority. 

After a period of time — no more than 90 days — the Legislature would then have to convene, and any additional declarations of emergency would have to be made by a vote of the people’s representatives.

Once that is done, I would have no problem with the Legislature deciding to declare this new type of emergency, and moving forward with a far healthier system of government in Maine.

Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.