POTENTIAL FOR REFORM

Maine is a state ripe for emergency powers reform in 2023. Two bills dealing with this issue have been submitted by legislators and will be considered later this year. While neither have yet been published and given Legislative Document (LD) numbers by the Revisor of Statutes, discussions with sponsors provided Maine Policy Institute with preliminary text for analysis.

One bill that was drafted by the MPI policy team, “An Act to Restore Balanced Emergency Powers,” and published in the Maine Policy Legislative Blueprint, was submitted by Rep. James White (R-Guilford), Sen. Brakey (R-Androscoggin), and Sen. James Libby (R-Cumberland). Because of their similarity, these bills are likely to all be combined by the Revisor of Statutes, the legislative office tasked with drafting and editing proposed bill language, into a single bill.

The MPI model language contains aspects of several bills submitted last session, as well as a ballot initiative proposed by the Libertarian Party of Maine, to alter the law in four major ways:

  • Proscribe a 30-day time limit to any Civil State of Emergency; in the event an emergency expires, the governor may not proclaim another “that is substantially similar to one that expired…without approval of the Legislature.” 
  • On the 20th day after an emergency proclamation, the governor must convene the Legislature and earn a 2/3rds vote of each house in order to extend the emergency. Legislators may terminate or amend any specific emergency order with a majority vote in each chamber.
  • All emergency orders which curtail constitutional rights must be “narrowly tailored to serve a compelling health or safety purpose,” issued by the chief executive, and legal challenges to which must be given expedited judicial review.

The bill would also specify that emergency action by the governor “be applied to the smallest political subdivision possible” and specify that statewide orders, as well as those that would “have a substantial impact on the operation of businesses,” or “directly result in the temporary or permanent closure of any business or civic or religious organization” be approved by 2/3 of the membership of the Legislative Council, a group of 10 lawmakers including the presiding officers, and the majority and minority party caucus leaders from each chamber.

The other bill, “An Act to Enhance Legislative Participation in the Use of Emergency Powers,” was submitted by Rep. Adam R. Lee (D-Auburn) would require the governor to be “in direct consultation with the Legislative Council,” in order to exercise emergency powers, and also require her to “narrowly tailor such actions” to address the emergency “while limiting the extent to which they deviate from the actions that would be permissible in the absence of a declared emergency.” Lee’s bill would also give Maine Superior Court jurisdiction over challenges to emergency orders and require appeals made by the governor to be expedited in the Maine Supreme Judicial Court. 

Lawmakers in Maine and around the US should review their chief executive’s powers under emergency declarations, and the extent to which the legislature may balance those powers, especially in circumstances where amorphous threats allow for prolonged declarations of an “emergency.” Review the status of emergency powers laws in all 50 states in 2023 via the interactive map below: