By David Flemming
Vermont scored the worst of all 50 states in providing a legislative check on the governor’s emergency powers, according to a new study from the Maine Policy Institute.
Vermont’s Legislature has little legal authority to challenge any emergency edict from the governor, given the wide scope in Vermont law regarding a governor’s actions in declaring and continuing a state of emergency.
In the policy study — “Scoring Emergency Executive Power In All 50 States” — “every state received a numerical score between 1 and 20 across five categories for a total score of up to 100 points. The highest score denotes the most stringent executive powers, allowing for the greatest accountability from the people’s branch, the legislature. The lowest score denotes the weakest check on executive powers and the greatest potential threat to liberty.”
There is a wide range in the time limits New England states have set on their state of emergency declarations. New Hampshire has the strictest declaration: the emergency must be renewed every 21 days. Maine and Rhode Island have a limit of 30 days, and Connecticut stipulates 60 days. Only Massachusetts and Vermont have no time limit on a state of emergency.
The only category that Vermont scores better in is the “authority to alter statutes or regulations” during a state of emergency. Only Massachusetts and Vermont do not give the governor such authority. New Hampshire is nearly as strict: the governor “may amend or create new regulations but cannot modify or remove statute.” Connecticut, Maine and Rhode all allow the governor to suspend any statute or regulation related to the emergency.
In the report, Vermont scores abysmally on the governor’s powers continuing post-emergency. New Hampshire, Massachusetts and Rhode Island immediately remove any such powers from the governor after the state of emergency is lifted. Maine gives its governor 30 days to use executive powers during the Covid-19 emergency. Connecticut and Vermont score lowest of the New England states, giving their governor six months to keep using emergency powers.
While the first three categories are given only a single weight, the last two categories are weighted twice as heavily, because, as Maine Policy notes, “the primary focus of this report is the checks and balances on emergency executive authority.”
Vermont joins three other New England states in giving the governor the sole responsibility for declaring a state of emergency: Maine, Massachusetts and Rhode Island. A Connecticut Senate/House legislative joint committee may “disapprove and nullify” a governor’s emergency order within three days, while New Hampshire gives both the legislature and governor the power to declare an emergency.
In every single other New England state, a joint resolution passed by the House and Senate will terminate a state of emergency. Vermont stands alone in giving the governor the sole authority to terminate an emergency.
It makes sense why these final two categories are weighted twice as heavily: Gov. Phil Scott has the authority to declare an emergency at any time he pleases and end it whenever he pleases. Time limits, the suspensions of laws during an emergency, and even the governor’s powers that continue after a state of emergency has ended, are all icing on cake.
No doubt the citizens of other states are more aware of interplay of emergency powers between the governor and legislature. Scott and the Vermont Legislature have been in near lockstep, at least on Vermont’s state of emergency, for all of 2020.
So far, only a minority of Vermonters have taken any actions against such emergency actions. However, lawmakers can reform Vermont statute and decentralize emergency power from the governor to the governor and the legislature.
David Flemming is a policy analyst for the Ethan Allen Institute. Reprinted with permission from the Ethan Allen Institute Blog.