Commentary: Lax Emergency Laws Leave Vermont Vulnerable

If we don’t transfer more power from the governor to the Legislature during emergencies, a ‘climate emergency’ declared by a future governor could be catastrophic for Vermont democracy.

Such emergencies are not far-fetched. In a December commentary, Rep. Curt McCormack (D-Burlington), said “if the Covid-19 pandemic can reduce our carbon emissions in one month by the same amount as we need to reduce per year, 7%, to avoid catastrophic climate change, can we not do this on purpose, in an orderly well-planned fashion?”

Scary stuff. Especially so knowing that 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. McCormack’s statement and this research should make all Vermonters a bit nervous.

Maine Policy gave each state “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.”

In the first category, Vermont and Massachusetts score highest in New England since they are the only states who do not give their governors the “authority to alter statutes or regulations.”

Then again, both Vermont and Massachusetts score lowest in New England because they set no time limit on a governor’s ‘State of Emergency,’ the second category.

In the third category, Connecticut and Vermont score lowest, since both give their governors 6 months to keep using most emergency powers after the emergency has passed. Most New England states remove the governor’s emergency powers immediately after the State of Emergency is lifted.

Vermont scores similarly poorly in the fourth category, joining Maine, Massachusetts, and Rhode Island in giving the governor the sole responsibility for declaring a State of Emergency. The other two New England states score higher because they give their legislatures more control. A Connecticut Senate/House legislative joint committee may "disapprove and nullify" a governor’s emergency order within 3 days of signing, while New Hampshire gives both the legislature and governor the power to declare an emergency.

In each of the other 5 New England states, a joint resolution passed by the House and Senate will terminate a State of Emergency, the fifth category. Only Vermont makes such a legislative motion legally meaningless, enough to cinch us the lowest overall score in New England, and the US.

It makes sense why these final two categories are weighted twice as heavily: Governor Scott has the authority to declare an emergency and end it whenever he pleases. Time limits, the suspension of laws during an emergency and even the governor’s powers that continue ‘after a state of emergency has ended’ are all icing on the cake.

So why should you care? After Governor Scott declared a Covid emergency in March 2020, Vermonters re-elected him by a higher percentage than any governor since 1950. Most agree that Covid-19 is indeed an emergency. But let’s say Scott runs for the US Senate and a progressive wins in 2022. What’s to stop a progressive governor from declaring a “climate emergency” and ruling by dozens of executive orders?

46 states give their state legislatures some power to stop a despotic governor. Only Vermont, Ohio, Washington and Hawaii offer no legislative safeguards. And Vermont scores worse than all 3 other states because we allow some of the governor’s emergency powers to continue 6 months after the emergency ends.

Perhaps our future governor would want us to cut our carbon emissions to zero in 2 years instead of 30. Why not ration gasoline, or shut off all shipments of heating fuel from freezing Vermonters, until they can buy a heat pump that doesn’t work when it’s bitter cold? Such a possibility could be a crushing blow for Vermont democracy, human dignity and our economy.

Let’s give our Legislature more legal tools to check the governor’s emergency power, while the chance of a future governor using these emergencies to concentrate power is still small.

David Flemming is a policy analyst at the Ethan Allen Institute. Nick Murray is a policy analyst at the Maine Policy Institute.


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