Guy Page: A state of emergency law explanation, including why it’s not ‘martial law’

By Guy Page

Some Vermonters have asked Vermont Daily about the governor’s legal justification for declaring and maintaining a state of emergency, including the closure of businesses.

The relevant statutes can be found in Vermont State Law, Title II, Chapter 20, Section 9, and also are printed below.

Here is my non-lawyer reading of the law, in a nutshell: during a state of emergency the governor is granted the same powers as state and local boards of health and other agencies to (among many other powers) close businesses, schools, and other institutions if public health is at risk. Basically it’s an on-steroids version of the local board of health shutting down a restaurant that has been found to have salmonella in its egg salad or rat droppings in the pantry.

Guy Page

The question also has been asked, “are we living under martial law?” Martial law — that is, applying military law to civilians — is in direct violation of the Vermont Constitution Article 17 which reads: “[Martial law restricted] That no person in this state can in any case be subjected to law martial, or to any penalties or pains by virtue of that law except those employed in the army, and the militia in actual service.”

While the Vermont Constitution does make the governor the commander in chief of the national guard, and the state law cited above empowers him to use the state’s military during a state of emergency, a state of emergency does not place Vermont under military law. It does expand significantly the civilian powers of the governor. These powers are limited by both law and constitution.

Several lawyers are regular readers of Vermont Daily. I would invite their input, and anyone else’s serious contribution, on the legal status of the current SOE. See below for the powers granted to the governor during a state of emergency:

Title 20 : Internal Security And Public Safety
Chapter 001 : Emergency Management
(Cite as: 20 V.S.A. § 9)
§ 9. Emergency powers of Governor

Subject to the provisions of this chapter, in the event of an all-hazards event in or directed upon the United States or Canada that causes or may cause substantial damage or injury to persons or property within the bounds of the State in any manner, the Governor may proclaim a state of emergency within the entire State or any portion or portions of the State. Thereafter, the Governor shall have and may exercise for as long as the Governor determines the emergency to exist the following additional powers within such area or areas:

(1) To enforce all laws, rules, and regulations relating to emergency management and to assume direct operational control of all emergency management personnel and helpers in the affected area or areas.

(2) To formulate and execute plans and regulations for the control of traffic and to coordinate the activities of the departments or agencies of the State and of the political subdivisions thereof concerned directly or indirectly with public highways and streets, in a manner that will best effectuate such plans.

(3) To prescribe the maximum rates of speed at which motor vehicles may be operated on any road, highway, or street in the State; prescribe the sizes and weights of such motor vehicles; suspend the application of any statute or regulation levying or assessing any license, insofar as such statute or regulation relates to the entry into or the privilege of operation in this State of any motor vehicle, including busses or house trailers, registered in any other state and with respect to which a valid and unexpired license has been issued by the other state.

(4) To employ such measures and give such directions to the State or local boards of health as may be reasonably necessary for the purpose of securing compliance with the provisions of this chapter.

(5) To utilize the services and facilities of existing officers, and agencies of the State and of the cities and towns thereof; and all such officers and agencies shall cooperate with and extend their services and facilities to the Governor as he or she may request.

(6) To use and employ within the State, from time to time, and as he or she may deem expedient, any of the property, services, and resources of the State, for the purposes set forth in this chapter.

(7) To establish agencies and offices and to appoint executive, technical, clerical, and other personnel as may be necessary to carry out the provisions of this chapter.

(8) Upon the declaration of an emergency as authorized in federal legislation that includes the State of Vermont, to cooperate with the President of the United States, the Army, Navy, and Air Force, with other federal departments, agencies, and independent establishments, and other states in matters pertaining to emergency management; and in connection therewith to take such action, not inconsistent with the Constitution and laws of the State, that he or she may deem proper to carry into effect any request of the President, the Secretary of Defense, the Secretary of Homeland Security, the Secretary of Health and Human Services, and the Director of the Federal Emergency Management Agency.

(9) To order the evacuation of persons living or working within all or a portion of an area for which a state of emergency has been proclaimed.

(10) As provided in 30 V.S.A. § 248(l), in consultation with the Chair of the Public Utility Commission and the Commissioner of Public Service or their designees, to waive the prohibitions contained in 30 V.S.A. § 248 upon site preparation for or construction of an electric transmission facility or a generating facility necessary to assure the stability or reliability of the electric system or a natural gas facility. Waivers issued under this subdivision shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days, or such lesser overall term as determined by the Governor. Upon the expiration of a waiver under this subdivision, if a certificate of public good has not been issued by the Public Utility Commission under 30 V.S.A. § 248, the Commission shall require the removal, relocation, or alteration of the facilities, subject to the waiver, as the Commission finds will best promote the general good of the State.

(11) In consultation with the Secretary of Natural Resources or designee, to authorize the Agency to issue temporary emergency permits, with appropriate conditions to minimize significant adverse environmental impacts, after limited or no opportunity for public comment, allowing site preparation for, construction of, or operation of an electric transmission facility or a generating facility necessary to assure the stability or reliability of the electric system or a natural gas facility. A permit issued under this subdivision shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days, or such lesser overall term as determined by the Governor. Upon the expiration of a temporary emergency permit under this subdivision, if any applicable permits have not been issued by the Secretary or the Commissioner of Environmental Conservation, the Secretary may seek enforcement under applicable law. (Amended 1959, No. 23, § 2, eff. March 6, 1959; 1983, No. 115 (Adj. Sess.), § 1, eff. March 16, 1984; 1989, No. 252 (Adj. Sess.), § 11; 2003, No. 82 (Adj. Sess.), § 5; 2005, No. 209 (Adj. Sess.), § 10.)

Image courtesy of Vermont National Guard

20 thoughts on “Guy Page: A state of emergency law explanation, including why it’s not ‘martial law’

  1. This is nothing but Martial Law especially when there’s the governors brown suits to enforce. Thought they would have common sense and ignore politicians and uphold the Constitution. I’ll protect myself and don’t need anyone in that capitol dictating to me.

    No politician has the right to do what they are doing. Where’s the lawsuits?

  2. No such allowance as described and rationalized within this article appears anywhere in either the U.S. or Vermont Constitutions.

  3. Staying home and out of harms way is using one’s common sense for a change. I could care less about the legalese of the governor’s authority, he’s trying to protect us. Pay attention!!!!

    • Notice how they only talk about the flu pandemic of 19__. ( I forget the date)

      Notice how nobody is comparing our current flu to every other year?

      Do they mention we have a flu “pandemic” every year?

      It may be a bad flu year, but notice they don’t compare the numbers, there is a reason for the you know.

      Notice how countries with no sanitation, healthcare, drugs are not doing any worse than normal? Why is that?

    • The primary concern of the coronavirus is the case fatality rate (CFR), and the WHO originally stated that this was in in 3-4% range. This CFR triggers the emergency. However, that estimate was based on the number of cases versus the number of deaths, and many epidemiologists have pointed out that the number of cases is far greater than those who were tested earlier and initially used to determine the CFR. Substantially more cases would lower the case fatality rate significantly.

      Recently, a paper published in the International Journal of Microbial Agents found that the CFR of COVID is so far typical of what we find with respiratory infections each year, from which some 2.7 million people die each year. Evidence from many sources put the CFR of COVID very close to that of the flu. Even Dr. Fauci, in an article published in the New England Journal of Medicine, argued that COVID appears to be similar to past flu pandemics:

      “If one assumes that the number of asymptomatic or minimally symptomatic cases is several times as high as the number of reported cases, the case fatality rate may be considerably less than 1%. This suggests that the overall clinical consequences of Covid-19 may ultimately be more akin to those of a severe seasonal influenza (which has a case fatality rate of approximately 0.1%) or a pandemic influenza (similar to those in 1957 and 1968) rather than a disease similar to SARS or MER ….”

      This is a very far cry from Dr. Fauci’s more public statements: “The novel coronavirus spreading across the globe is ’10 times more lethal than the seasonal flu,’ the government’s top infectious disease official told a House hearing, where he warned the U.S. must take serious mitigation efforts now.” (March 11, 2020)

      To all appearances, rather than counselling calm and perspective, the powers-that-be are instead counselling panic. This is despite that we had many warnings earlier that the evidence simply didn’t justify the drastic measures that have been taken. Chief among the critics of the mainstream view was Dr. John Ioannidis of Stanford University, widely regarded as an expert on evidence-based medicine. We simply have no evidence to justify our extreme measures, he said, and as we move forward it becomes clearer and clearer that what we’re looking at is akin to a bad flu, and nothing more. COVID does not justify such drastic measures and the manipulation of individual freedoms for the good of the state; one could argue that those individual freedoms are paramount, and are indeed the foundation of the good of the state and should be protected at all costs and not subjugated to hysteria and unfounded fears.

      Out of respect for individual liberties, Sweden has more-or-less requested, but not commanded, that citizens take cautions. In Sweden, you can still go out for a beer or meet friends in restaurants. Sweden is seeing no unusual explosion of cases and the advantage of their approach is that people who are mingling (including children, who still go to school and get far, far fewer serious symptoms than older adults do) are getting the virus and becoming immune. Let’s remember that at least 50% of cases are asymptomatic, and the majority of the other 50% of cases have mild symptoms. (Sooner or later, we’ll have to come to terms that more people will become infected, unless we have permanent lockdown. We’ll also have to admit that a virus that leaves 50% of infections with no symptoms is simply not the new Black Death.) More importantly, Sweden is avoiding the shadow of a police state, although coming under tremendous pressure to bow down to what appears to be a Brave New World.

      Freedom should not be so cheap that it withers at the first blush of collective hysteria.

      • Jim, well said, this should be the lead story.

        Sadly there are surely many more scientists that would support and understand what you’ve said. Yet we will not are not hearing their voices.

        Of course now people have to save face, which is a bit understandable, since you have collapsed the entire western economy. Of course many of us have known there was going to be a man made collapse of some sort before this election, as it’s been written in the plan book for all to see.

        Reading is such a wonderful thing, you can pick up so much. The commentary again blows Vermonts main stream media out of the water, we are as a group better than what is currently feeding us (media) and representing us ( Montpelier) we only need to come together.

  4. The State of Vermont has, unfortunately, gone right up to the edge of martial law and dispensed with Constitutional freedoms, relying not on the military, but the militarized State Police and Sheriffs to enforce it.

    Up until this point, they’ve relied upon the good nature of the populace to abide by the edicts emanating from Montpelier.

    As more time passes, we hear, and read, about more inane declarations from governors about what they declare to be non-essential – a clear indication that the time to stop the insanity is NOW.

    After 30 April, 2020, I will no longer feel obliged to follow the ‘Stay Home’ edict. I will go where I want, when I choose, for however long I desire to. I am a Free American with Constitutional Rights – I swore an oath for 25 years to uphold and defend them, and it’s past time I took them back. I strongly advise those among law enforcement in this State to back off and follow your oath – not some little tyrant with delusions of grandeur named TJ Donovan.

    • When they take you lively hood they have taken your right to life. No money, no food. Then they “test” certain areas with restricted access to stores.

      Cuba does something like this, they only turn the water on certain times of the day. Much easier to get compliance that way.

      Next they will mark you for work, have you been vaccinated, something that will probably be 47% effective at best? But the government will tell you it’s for your safety? When naturally we deal with these pandemics every year, but this one is going to end the world?

      The oldest trick in the book is scaring the populace into thinking the world is going to end. Have to say they’ve done a really good job on this one. It’s just a better lie than most, exceedingly good propaganda. COvid 19 is a bad flu, it’s not the end of the world. That is if it’s not a bio weapon.

    • Mr. Beardsley: spot on again, as is your custom. My compliments. I second your assertion to reclaim liberty and will be there to resist, also. Further, I urge all Vermonters who cherish liberty and the Constitutions to network with others of like mind and communicate frequently, forming a collective of citizens who are ready to support each other as need arises. Then, be there for each other as the redcoats and Yorker jackboots threaten. The Eichmanns in law enforcement will hesitate when faced with numbers of determined resisters. We can put them on the run!

  5. To order ppl “Shelter in Place” when there is no real risk to vast majority of residents = defacto Martial Law – iow similar result as Martial Law.

    Nursing Home residents were failed by our leaders and officials as were the rest of us by this ill-conceived haphazard abject failure. Highest amount of deaths and cases by many factors is Chittenden Cty – it could have been ordered to take appropriate measures – but even what Benedict Scott and foolish DOH chief proscribed for rest of state is too harsh.

    The good news is that hopefully voters will awaken to the egomaniacal drunken power trip Comrade Scott is on and the best way to stop it is – vote him out.

    History will not be kind to this jacka*s.

  6. A state of emergency law explanation, including why it’s not ‘martial law’,
    It may not be martial law but it sure does feel like it !!

    Apparently the Governor thinking on ” essential ” means something most
    of us don’t align with…. we all have our own essential needs.

    If he’s worried about the welfare of his Citizens, so why you can text while
    you drive, smoke a bowl and drive, or Vermont’s creme de creme you can have
    an abortion on demand…………. Yeah, he cares !!

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