Commentary: Emergency powers in times of crisis

Think back to civics class in the early years of your education. This is when most of us first learned about the fundamentals of American government: The Constitution, separation of powers, federalism and more. We were taught that while our system isn’t perfect, it was constructed in a manner that diffuses power to protect against tyranny.

Despite the ideological factions that existed at our nation’s founding, these ideas were something on which all could agree. History is replete with examples of tragedy when a single human wields too much power.


Now think about everything you witnessed your state government do over the last year, mostly by executive fiat: crushing lockdowns and economic restrictions that significantly hurt the average American’s ability to earn a living and provide for their family.

Far from a forgotten civics lesson, millions of Americans learned firsthand how their government can completely upend their daily lives.

At the peak of state-ordered lockdowns in response to COVID-19, 316 million Americans across 42 states lived under a stay-at-home order. Businesses and places of worship were ordered closed. Millions lost their jobs and savings. Elective surgeries were canceled or delayed as thousands of cancer screenings and organ transplants went unperformed. All this, and we’re barely scratching the surface of unintended consequences as a result of last year’s pandemic policy.

Most rules we were told to follow were implemented by executive order under an emergency declaration. Few, if any, were subject to the deliberative scrutiny of our state legislatures. When courts were asked to intervene, many punted the issue back to legislatures, or in some cases, chief executives modified their rules in an attempt to nullify the pending litigation.

Perhaps you’re wondering how a country built on individual liberty could fall so far from its founding ideals. How did our system of governance allow this to happen? Who watches the watchmen during an emergency?

As exhibited by the responses of many governors to the coronavirus pandemic, the truth is that the chief executive is too powerful in most states, specifically in emergency situations.

Here in Maine, we’ve seen Gov. Janet Mills continuously extend her emergency declaration and govern by edict for nearly a year, unilaterally dictating all public policy in our state.

But legislatures are the ultimate arbiter of public policy in every state. Under no circumstance should these bodies be sidelined for an entire year while a single human determines what actions are necessary to respond to an emergency. Citizens deserve a voice in every decision their government makes, and when legislatures are sidelined, the people effectively have no voice in their government anymore.

To be clear, I do not contend that Gov. Mills broke any state laws. Rather, the laws in place in Maine and the rest of the country are inadequate to maintain the right balance of power between the legislature and chief executive during emergencies. Our laws enabled the governor to wield power in the ways she did without legislative oversight or approval. That’s not right, and it’s something lawmakers around the country should examine following the pandemic.

It is possible to provide proper checks on executive power during an emergency without hampering a governor’s ability to marshal an effective response. States should explore developing laws and procedures specific to handling a public health emergency, since most states’ emergency laws were constructed to help them respond to a natural disaster or terrorist attack, not a pandemic.

Executive orders issued under an emergency should be narrowly tailored and challenges to these rules should receive expedited judicial review. Limiting the duration, applicability and scope of emergency orders would result in less unintended consequences, and promptly give those who feel they’ve been wronged by the government their day in court.

State legislatures should require governors to obtain their permission to extend an emergency declaration, as well as have the ability to nullify individual orders issued by a governor. This would allow the governor to respond in ways he or she feels is necessary while also giving lawmakers an avenue to check the governor if an order is onerous, arbitrary or exceeds the true scope of their emergency power.

These are reforms every state should consider as they try to make sense of everything that happened last year.


State governments should respect the rule of law and its separation of powers, even in emergency situations. Without balance, concentrated power in the hands of a few will most certainly bend toward tyranny.

Nick Murray is a policy analyst with the Maine Policy Institute. Twitter: @NickMurr