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“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

— James Madison, Federalist Papers No. 47


KEY FINDINGS

  • Maine received a score of 51 out of 100 points, landing among the middle of the pack in a tie for 22nd overall. This is because the governor has the sole power to initiate an emergency, while the legislature may only terminate it with a majority vote. This is not the worst policy scenario, but under single-party rule, little incentive exists for legislators to hold the governor accountable.
  • Kansas and South Carolina outperform the rest of the country because, in both states, the governor must earn legislative approval for an emergency declaration to continue past the first 15 days. Kansas ranks 1st overall because the legislature may only approve one 30-day extension after the initial 15 days and requires a unanimous vote of the State Finance Council for successive extensions.
  • Vermont, Washington, Ohio and Hawaii are among the worst-ranking states because they bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist. Nearly one-in-four states have this arrangement. Vermont ranked last among all 50 states because it also allows certain emergency executive orders to remain in effect up to 180 days after the emergency has been terminated.
  • Only one state (Louisiana) allows emergencies to be terminated with a majority vote of either house.
  • While seven states do not provide the governor the authority to alter or suspend statues or regulations during emergencies, 34 states allow the governor to suspend statute. North Carolina allows the governor to create new statutes and regulations within an emergency.

INTRODUCTION

Under the Tenth Amendment of the U.S. Constitution, states retain powers not reserved to the federal government. Supreme Court precedent dating back to 1905 affirms that these include broad police powers in emergency situations. In Jacobson v. Massachusetts, a Cambridge pastor refused state-mandated smallpox vaccination for himself and his children amid an outbreak. The Court deferred to the actions of the Massachusetts Legislature, ruling the vaccination law was “necessary in order to protect the public health and secure the public safety,” and did not violate the Fourteenth Amendment’s “equal protection” clause.

A critical need exists to ensure government mechanisms can respond quickly and effectively to emergencies, but state law proscribes the boundaries of this authority. It is the duty of each state’s legislature to ensure it is an appropriate counterbalance to the executive branch.

For those who value constitutional government, the separation and diffusion of power between co-equal branches is paramount. As the American founders warned, concentrated power most certainly will bend towards tyranny.

WHY CREATE THIS SCORECARD?

Most often, states of emergency are declared to enable state governments to respond to natural disasters. During 2020, the varied responses of many U.S. governors to the spread of SARS-CoV-2, the virus that causes COVID-19, sparked an interest among many observers of American politics to how each state delegates authority to the executive branch in emergency situations.

While most-to-all governors are bestowed equally broad emergency powers through state statute, sufficient variation exists in regard to the process of declaring, extending, or terminating states of emergency, as well as legislative checks on the governor’s authority therein.

Readers should use this report to better understand the balance of power between the executive and legislative branches in their state. It is not meant to score how individual governors wielded their powers in 2020, although those actions and corresponding reactions by courts and legislatures helped build a more comprehensive understanding of the true reach of government power.

RESEARCH METHODS & SCORING

Maine Policy examined each state’s emergency powers statutes by utilizing either the state government website or Justia, an online legal database. This research was conducted to determine the extent of legislative oversight, powers delegated to the chief executive, and the process for initiating or terminating a state of emergency declaration.

Every state received a numerical score between 1 and 20 across five categories for a total score of up to 100 points. The highest score denotes the most stringent executive powers, allowing for the greatest accountability from the people’s branch, the legislature. The lowest score denotes the weakest check on executive powers and the greatest potential threat to liberty.

As the primary focus of this report is the checks and balances on emergency executive authority, the two categories that deal with the process of initiating or ending a state of emergency were weighted double in relation to the other three categories: time limits on emergency declarations, whether a governor’s powers persist after official termination, and the ability of the governor to alter statute or regulations during an emergency. Time limits on emergency powers are effectively useless if a governor is the sole judge of whether an emergency exists, as is the case in Hawaii, Vermont, and Washington, among other states.

In 2019, researchers from the U.S. Centers for Disease Control and Prevention Public Health Law Program surveyed the emergency authority of US governors to alter statute and/or regulations. These findings were largely affirmed and included in Maine Policy’s analysis. While this particular aspect of law is crucial to understanding the scope of a chief executive’s powers during an emergency, it means little if legislative checks on the governor’s ability to declare and continue states of emergency are weak.

This analysis does not measure the extent of governors’ authority to regulate the sale, possession, or transfer of firearms during states of emergency.

REFORMING MAINE’S EMERGENCY POWERS LAW

Following the initial declaration of Civil State of Emergency by Maine Governor Janet Mills in March 2020, lawmakers adjourned to allow the executive branch to manage the pandemic. As the spring and summer wore on, legislative leadership repeatedly denied requests by the minority to reconvene, avoiding difficult votes for members of the governor’s party. Over the course of 2020, Maine people saw firsthand how unified government in Augusta could mean a potentially never-ending state of emergency.

By Maine law, absent a joint resolution from the legislature, the governor may choose to continue an emergency declaration in perpetuity. While this is not the least-friendly regime to liberty, it is far from ideal.

Looking to other states, Maine lawmakers can secure the people an equal seat at the table no matter who controls the governorship or legislature. A proposal to require a legislative concurrence vote for any emergency extension beyond the initial 30-day declaration would go a long way to ensuring the people remain involved in the process. As Minnesota requires, Maine might benefit from a requirement where the governor must convene a special session of the legislature after any emergency lasting longer than 30 days.

Legislators may also look to expand their authority to nullify specific orders issued under an emergency, not only the emergency declaration itself, as New York allows. That change would provide a backstop for over-zealous governors who might attempt to unilaterally implement arbitrary, unproven, and unworkable mandates on the people. None of these reforms would hinder a governor’s ability to quickly respond to an imminent crisis.

AUTHOR’S NOTES

To provide the reader with confidence in the quality of the research, this report includes a public spreadsheet to view each state’s scores by category, as well as the statutes cited for analysis. For instance, Arizona has a “war emergency” directly related to responding to a military attack. The rules regarding this type of emergency were not included in this analysis because of its use for an extenuating circumstance.

Michigan is a special case. As of this writing, it is the only state without an emergency declaration due to COVID-19. Under analysis in this report is the 1976 Emergency Management Act (EMA). In October 2020, the Michigan Supreme Court struck down the 1945 Emergency Powers of the Governor Act (EPGA), ruling that Governor Gretchen Whitmer’s extensions of the emergency declaration without legislative approval constituted an “unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.” In effect, the court said that the governor’s emergency authority must come from the EMA.

In response, Governor Whitmer cited a different statute which states, “If the director [of public health] determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose…to insure continuation of essential public health services and enforcement of health laws.” This law effectively allows for the issuance of epidemic-related emergency orders without a declaration by the governor, and may also be ruled unconstitutional in the future. This report analyzed the EMA, but the current situation adds an important caveat to the potential scope of executive power in Michigan.

Another important caveat: the governor of North Carolina has the authority to “impose by declaration prohibitions and restrictions” on localities if he “determines that local control of the emergency is insufficient to assure adequate protection for lives and property.” While not necessarily the power to “create statute” as the 2019 CDC paper observed, this power is distinct from that of other governors who may merely amend regulations or suspend enforcement of statute.

By providing state-specific clarification and guidance, colleagues and partners from organizations around the country fortified the research and methods of this project; they have our immense gratitude. Maine Policy sends special thanks to friends at the Mercatus Center at George Mason University, John Locke Foundation, Beacon Center of Tennessee, Libertas Institute, Commonwealth Foundation, The Resolute Group, Cardinal Institute, Americans for Prosperity, Pelican Institute, Mass Fiscal Alliance, Washington Policy Center, Alaska Policy Forum, Mackinac Center for Public Policy, Buckeye Institute, California Policy Center, Palmetto Promise, Yankee Institute, Garden State Initiative, Oklahoma Council of Public Affairs, Wisconsin Institute for Law and Liberty, Pacific Legal Foundation, and the State Policy Network.