Testimony: Balance Emergency Powers of Executive and Legislature


Testimony in Support of LD 1862, “An Act to Restore Balanced Powers During a State of Emergency,” LD 1872, “An Act to Restore Balanced Emergency Powers,” and LD 1876, “An Act to Enhance Legislative Participation in the Governor’s Use of Emergency Powers”

Senator Nangle, Representative Stover, and the distinguished members of the Committee on State and Local Government, my name is Nick Murray and I serve as director of policy for Maine Policy Institute. We are a free market think tank, a nonpartisan, non-profit organization that advocates for individual liberty and economic freedom in Maine. Thank you for the opportunity to testify in support of LDs 1862, 1872, and 1876.

We are pleased to see bipartisan interest in outlining proper balance between the legislative and executive branches in times of extended emergency. While we would prefer this committee to advance bill language closest to that of LDs 1862 and 1872, we believe that LD 1876 offers a proper compromise to address the concerning possibility of an open-ended state of emergency, which is allowed under current law.

Since 2020, 13 states have amended their emergency powers laws to provide better balance to executive power through requiring legislative input and consent. These changes have been tracked in Maine Policy Institute’s first-in-the-nation scorecard of legislative oversight over emergency executive power in all 50 states over the last three years.

The bills in front of you today mirror many of the reforms seen around the country. These include prescribing a standard length of time for a state of emergency declaration and requiring legislative approval in order to extend an emergency beyond the initial declaration. Above all, this aspect of reform is the most important. 

No one disputes that a governor should have latitude during an emergency to respond quickly to an evolving threat to the citizens of that state, however, it may be unwise to grant such absolute power for an extended period of time. After a reasonable amount of time—from two weeks to a month—the people’s branch should be back in control.

Unfortunately, Maine law today only allows for the Legislature to opt-out of a state of emergency. Instead, a standard process should be in place for future emergency declarations, which simply require the governor to earn an affirmative vote of legislators in order to renew a state of emergency, beyond the first 30 days.

The emergency declaration, extension, and termination process should be clear and consistent, no matter the current political makeup of the legislature and executive branch. By requiring periodic legislative approval, as many of these bills propose, the law would require legislators and the governor to convene in public, lay out the facts, and develop a consensus for governing in an extended emergency situation.

Legislators should also be able to amend or rescind specific emergency orders by joint resolution, and Mainers should be able to challenge emergency orders under the “strict scrutiny” standard, whereby the state must prove that it is fulfilling a compelling interest with the least restrictive means possible.

It is crucial that governing authority be vested primarily in the people’s body; the principle of separation of powers must not be forgotten, even during an emergency. Please deem LDs 1862, 1872, and 1876 “Ought To Pass” to instill a more adequate balance in how emergency powers are wielded in Maine. Thank you for your time and consideration.