Release: New analysis scores the checks and balances on emergency power in all 50 states
FOR IMMEDIATE RELEASE
January 28, 2021
Contact: Jacob Posik
Director of Communications
PORTLAND, Maine – Maine Policy Institute today released a new policy brief, “Scoring Emergency Executive Power in all 50 States”, which studies the balance of power between the executive and legislative branches in relation to emergency declarations. The analysis determines the extent of legislative oversight and the powers delegated to the chief executive, as well as the process for initiating and terminating an emergency declaration in all 50 states.
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 arrangement, but under single-party rule, little incentive exists for legislators to hold the governor accountable.
“Due to the truly unprecedented exercise of emergency authority in response to COVID-19 over the last year, Americans across the nation have witnessed firsthand the broad police powers entrusted to their governors,” said Nick Murray, policy analyst and author of the report. “This scorecard does not evaluate each individual governor, but rather the statutory checks on the chief executive’s power. Even during emergencies, sound, constitutional government requires balance between the co-equal branches.”
Maine can improve its emergency power laws by implementing safeguards that have been enacted in other states. Lawmakers can secure the people an equal seat at the table no matter who controls the governorship or legislature by requiring a legislative concurrence vote to extend an emergency beyond the initial 30-day declaration. They should also explore expanding their own authority to nullify specific orders issued under the emergency declaration. Currently, Maine lawmakers only have the power to end the emergency declaration itself.
A review of the initial bill requests submitted by lawmakers before cloture finds that 15 requests were submitted by 10 different lawmakers to reform emergency executive power and the process by which an emergency is declared, extended or terminated in Maine. The issue should garner considerable attention this legislative session.
“Maine clearly has work to do to improve its emergency executive power laws,” said CEO Matthew Gagnon. “What we’ve witnessed over the last year – one person unilaterally dictating public policy and renewing their declared emergency in perpetuity without the consent of the legislature – must never be allowed to happen again. Lawmakers should take action this session to right this wrong and ensure the individual liberty of Maine people is never again subject to authoritarian-style rule.”
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 beyond the first 15 days. Kansas scores 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.
Among the worst-ranking states are Vermont, Arizona, Ohio and Hawaii because they grant their governors the sole authority to determine when and where an emergency exists, and when it ceases to exist. Vermont ranks 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.
Every state received a numerical score between 1 and 20 across five categories for a total of 100 points. The five categories examined in each jurisdiction are: 1) the process for initiating an emergency declaration; 2) the process for terminating an emergency declaration; 3) time limits on emergency declarations; 4) whether a governor’s powers persist after official termination; and 5) the ability of the governor to alter statute or regulations during the emergency.
High scores denote the most stringent executive powers that allow for the greatest accountability from the people’s branch, the legislature. Low scores denote the weakest checks on emergency power and the greatest potential threat to liberty.
A digital version of analysis can be read here. A public spreadsheet containing information on all 50 state scores can be viewed here.
Maine Policy Institute is a 501(c)3 nonprofit, nonpartisan organization that conducts detailed and timely research to educate the public, the media, and lawmakers about public policy solutions that advance economic freedom and individual liberty in Maine. Learn more about our work at www.mainepolicy.org.