For the next pandemic, Maine needs a system to share emergency powers

By Matthew Gagnon

Last week, a long overdue announcement was made by Gov. Janet Mills, declaring that Maine’s 15-month long state of emergency would be coming to an end on June 30. 

This is obviously good news, no matter your political affiliation or perspective on the policy reaction to the pandemic. At the end of the day, life is beginning to return to normal, and a government that operates as a functional republic as opposed to a centralized, autocratic regime is a good thing. 

Now that we are starting to get this all behind us, I think it is an opportune time to start asking ourselves some very important questions. Chief among them is this: Do we really want to do it this way next time?

Do we really want to have a single human run state government essentially by themselves? Do we want executive orders with the force of law to be issued with no legislative input, and with major impacts on the freedoms of everyday citizens? Even if we do want those things, are we truly comfortable with that kind of situation being normalized for that long?

Given how political the response to the pandemic has become, I would expect two answers from two distinct groups of people. If you are a liberal supporter of Mills, you are very likely to answer “yes” to all of these questions. After all, by your thinking, Mills kept us safe and is surrendering the power she assumed, so really, what is the harm?

If you are a conservative who isn’t all that fond of Mills, your answer is almost certainly “no” to everything. After all, by your thinking, she chose an extremely restrictive response to the pandemic, the Legislature had nothing to do with either choosing or scrutinizing those edicts, and the freedom of Mainers suffered greatly all year.

Sadly, this politicization of everything means a productive conversation about this topic is likely impossible. But even if it is, that does not change the fact that it is a discussion we should be having, and having honestly. 

On the one-year anniversary of the declaration of emergency, I used my column to highlight the problematic language in Title 37-B of Maine state statute, which is the part of Maine law that outlines the rules for emergency declarations. More importantly, though, I proposed a simple rule of thumb for us to think about when we consider what we want these laws to look like.

What would you think if your political adversary was in control?

If you are a Democrat, how would you feel about the rules if Gov. Paul LePage was in office during the pandemic, and he had a Republican Legislature behind him? Would you have supported the same broad assumption of authority by the governor? And remember, many of us remember your reaction to LePage’s attempted quarantine of a nurse who had treated Ebola patients back in 2014, so try to be honest.

For Republicans, we already know the answer to the question as the state has seen unitary control of state government throughout this ordeal. 

I think it is quite clear that neither side would like or support the system as it currently is.

So what do we do about that? How can we reform the system to better protect our government from slipping into this kind of persistent assumption of executive authority, while also making sure that the Maine government is flexible enough to respond to difficult and acute emergencies?

I keep coming back to one simple solution: create a special, designated type of emergency that is meant to address the situation we just lived through. Call it a public health emergency in statute, and allow the governor to exercise powers much as Mills did in the first 60 days of a pandemic. After that, require that further extensions of the state of emergency and any executive orders are approved by a vote of the Legislature, and that any new rulemaking has to be done with the support of the people’s representatives in Augusta. 

We made it through the pandemic, and it is time to get back to normal. But it is also time that we take stock of what just happened, and ensure that we never again live through a situation like that again.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland.