Maine legislators are trying to rein in the governor’s emergency power

Lawmakers in the Maine Legislature are trying to restrict the governor’s emergency powers. 

Republicans proposed limiting the governor’s ability to convene the Legislature, in response to Democratic Gov. Janet Mills calling lawmakers into a special session after the Democratic majority made the decision to quickly pass a two-year budget that failed to secure two-thirds support. 

Crucial to that plan was the understanding that the Legislature would adjourn, in order to start the clock to release the funding, and immediately get called back by the governor to attend to the remainder of legislative business. 

In addition to the Republican proposal, a Democratic lawmaker has suggested an alternative way to reign in executive reach by requiring legislators to be consulted in emergency decisions. 

When the lawmakers presented their plans to the State and Local Government Committee on Monday, no one from the public testified for nor against. 

Republican proposal

Rep. Joshua Morris (R-Turner) and eight Republican co-sponsors, including House Minority Leader Billy Bob Faulkingham of Winter Harbor and Assistant Minority Leader Katrina Smith of Palermo, proposed amending the state constitution so that if the Legislature adjourns “sine die”, or finally, the governor can’t reconvene the body for 90 days.

Because it proposes a constitutional amendment, LD 1331 has to be passed by two-thirds of the Legislature and then ultimately be decided by Maine voters through a ballot referendum question.

“I will not attempt to hide the true motivation behind my proposal,” Morris told the committee. “The last three sessions have seen a majority budget passed at the end of March with a sine die adjournment, only to see the Legislature called back immediately.”

The two-year budget was ‘not the last word.’ Here’s what comes next.

The Maine Constitution establishes an adjournment date for the Legislature for both the first and second regular sessions. The end date for the first regular session of the current 132nd Legislature had been June 18 but the body adjourned just after midnight on March 21 before Mills called a special session. There is no statutory limit on the length of a special session.

“The constitution states that the governor may call us back on ‘extraordinary occasions,’ not just to finish the work we haven’t gotten to yet,” Morris said. “For example, calling the Legislature back so we can commemorate official reptiles and amphibians is hardly an extraordinary occasion that can’t wait until the second regular session.”

Several of Morris’ Republican colleagues made similar remarks at the time of those specific votes after the Legislature began its special session on March 25.

Rep. William Tuell of East Machias said on the House floor ahead of the vote one state amphibian that the body should instead be dealing with matters he views as in line with “extraordinary occasions,” such as high property taxes. The Legislature is considering a number of bills on property taxes carried over into the special session.

During the hearing on Monday, lawmakers discussed the possibility of more specifically defining what constitutes an “extraordinary occasion” through LD 1331.

Morris also argued his bill would require more bipartisan consensus on a budget or other laws in order to get them passed in a timely manner without deploying the special session maneuver, as it takes 90 days for bills to take effect if they don’t secure the two-thirds support needed to pass as an emergency. 

Members of the minority party have been vocal about their opposition to the current special session. 

Rep. Shelley Rudnicki (R-Fairfield) has continuously called the session “illegal” and questioned what extraordinary circumstances warranted it in speeches on the House floor and in meetings of the Taxation Committee.

Rep. Gary Drinkwater (R-Milford) is also leading an effort for a people’s veto of the two-year budget. The referendum needs at least 67,682 signatures from Maine voters by June 18 to put the budget, the funding for which is set to become available at the end of June, on hold until the November election or an earlier statewide special election. 

Democratic Secretary of State Shenna Bellows released the proposed wording for the question last week, which Drinkwater has said he’s disappointed with. 

The proposed question reads: “Do you want to stop most state government operations and programs, including new and ongoing state funding for cities, towns, and schools, by rejecting the state’s two-year budget?”

This is not the first time lawmakers have objected to how the governor has exercised emergency power.

During the COVID-19 pandemic, Mills adjourned the Legislature, prompting lawmakers on both sides of the aisle to call for her to bring the body back, though Republicans wanted to only address pandemic-related issues during the special session while Democrats wanted to address other unfinished business, as well. 

The Legislature can call itself into a special session without an action by the governor if the majority of the members in each party consent, which could not be achieved in that case. 

Democratic proposal 

Executive emergency power is not vested in the governor by the constitution. Rep. Adam Lee (D-Auburn) told the committee that the Legislature, therefore, has and should assert its authority to be more involved in emergency decisions.

“This bill isn’t about the present chief executive, nor is it about any former or future chief executive,” Lee said. “This bill is about this branch of government, the primary policymaking branch of government, the one closest to Maine citizens, modestly reasserting its role in participating in governance of the state in the event of an emergency.”

LD 1524 would require the governor to consult directly with the Legislative Council, which is composed of the ten elected leaders of legislative leadership, when acting on emergency powers. 

It would also require the executive’s actions to be narrowly tailored to address the specific public health or safety emergency for which the emergency was declared and require court action if the governor’s actions don’t adhere to that standard. 

Specifically, it would provide the Maine Superior Court jurisdiction to issue temporary restraining orders or preliminary injunctions against executive actions, and in the event one is granted, it gives an expedited appeal to the governor to challenge the injunction to the law court. 

Another way the governor would be required to loop in the Legislative Council would be through a weekly, written briefing detailing all actions taken pursuant to emergency powers and how and whether those actions have helped abate the emergency. 

Lastly, the bill would require three-fifths of the Legislature — 91 representatives and 21 senators — to extend an emergency beyond 30 days.

“While I can understand that in emergency circumstances it is more efficient for a single person advised by talented and intelligent but nevertheless unelected individuals to make decisions for the people,” Lee said, “that efficiency comes at the expense of having these decisions made by the individuals closest to the people.”