It’s time to reform Maine’s emergency laws to restore balance of power

By Matthew Gagnon

On Feb. 15, 2019, President Donald Trump signed Proclamation 9844, which declared a “National Emergency Concerning the Southern Border of the United States.”

Critics quickly pounced. 

Senate Minority Leader Chuck Schumer accused the president of trying to shred the Constitution, and saying that the order was “a lawless act,” and a “gross abuse of the power of the presidency.”

An investigation was opened by the House Judiciary Committee, intent on proving that the emergency was unwarranted. 

Even our own junior senator, Angus King, got into the mix. He was outraged, calling Trump’s order “antithetical to our American system of government.”

I actually agree with them about that order, and frankly most executive orders issued by presidents and state governors.

The founders of this country set up a republican form of government in the United States, which is defined as “a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch.”

In republics, the act of legislating is done by the elected representatives of the people. Through them, the consent of the governed is granted and expressed. Without them, government quickly devolves into autocracy.

Executives are not elected to make law, rather they were elected to execute the laws passed by a legislative body.

For several decades presidents and governors across the United States have been slowly chipping away at legislative power. Republicans have done it. Democrats have done it. Chief executives often prefer to dispense with the messy work of building popular support and passing laws the traditional way, instead simply ordering it done. 

And now, Joe Biden is doing it. And they have primarily been doing this through the aggressive use of executive orders, though in the last 12 months the use of emergency declarations has made this trend all the worse. 

This should make every American deeply uncomfortable, though unfortunately it doesn’t. Most of us are frustrated with our leaders in Congress and our state legislative bodies, and we grow impatient with the slow pace of action and political games we see. 

Because of this, when a person who we agree with politically takes bold action to break through that logjam with executive action, we tend to cheer. When someone we don’t like does it, we decry it as an abuse of power.

Just before Trump declared the emergency on the southern border, Speaker of the House Nancy Pelosi warned him that he was setting a precedent that could result in the next Democratic president declaring a national emergency on gun violence.

If that happened, the next Republican president would probably declare an emergency on the overregulated economy. And the next Democrat would declare an emergency over racial injustice. And so on, into infinity. 

Fortunately, there are things we can do to stop this from being a reality. 

Right now, that fight is over the executive authority exercised by governors across the country during the last year. In state after state, emergency declarations have been used to create immense legislative authority within the executive branch, maintained in perpetuity by a never-ending renewal of vague declarations of emergency.  

And yet, in state after state legislatures are finally moving to take that authority back, and reassert the power of the people’s representative bodies. This is even happening in states where the Legislature is controlled by the same party as the governor, such as in New York, where the Democrat-controlled Legislature has frozen Gov. Andrew Cuomo’s ability to issue new COVID related orders, and in Ohio where last month Republican lawmakers overrode Gov. Mike DeWine’s veto of a bill that restored the authority of the legislature to control emergency and health orders. 

If they can do that in New York, and they can do that in Ohio, are we still pretending that they can’t — and that they shouldn’t — here in Maine?

It is time to reform Maine’s emergency laws to restore balance in our republic.

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