For nearly 15 months, Gov. Phil Scott has led Vermont through the Covid-19 crisis, relying on immense executive powers granted through the declaration of a state of emergency.
Since March 13, 2020, Vermont’s emergency status has served as a vehicle for Scott to implement drastic measures aimed at curbing the spread of the coronavirus — limiting Vermonters’ travel, shutting down in-person business operations, directing residents to quarantine and issuing a statewide mask mandate.
Over time, the governor has rolled back restrictions, slowly reopening the state.
But as virus cases plummet in Vermont, and the vast majority of residents have been vaccinated, the Scott administration is preparing to lift the remaining Covid-19 measures and the state of emergency that has made them possible.
Scott said Tuesday that he plans on dropping his declaration “within days” of when 80% of Vermonters receive at least their first Covid-19 vaccine. As of Tuesday, 79.4% of residents had met the vaccination requirement, with 3,139 more residents needed to reach the governor’s threshold.
In removing the emergency declaration, Scott will be giving up the wide latitude he and his administration have used to unilaterally respond to the pandemic.
Jared Carter, a constitutional law professor at Vermont Law School, said that by declaring a state of emergency, Scott — and governors across the U.S. — “have been able to essentially govern by fiat.”
Carter said that under state constitutions, governors can usually use such expansive power only “when there is an emergency” and the approach is “very inconsistent with the way things normally work.”
“One of the things we can feel good about in Vermont, and hopefully across the country, is that when that emergency no longer exists, our leaders willingly give that power up,” he said.
Living without a state of emergency
If Covid-19 cases began to climb again, and Scott wanted to reintroduce sweeping public health measures, he would need to redeclare a state of emergency.
However, Scott’s legal counsel, Jaye Pershing Johnson, said if there was a resurgence of Covid-19, she doesn’t believe the same broad public health restrictions would be needed — given that state officials understand how the virus spreads and that most of the population is vaccinated.
“Any approach that we do would not be a statewide ‘stay home. Stay safe.’ It would be something much more surgical,” Johnson said.
Under state law, Vermont’s health commissioner, Mark Levine, also has broad authority to issue emergency health orders to mitigate “imminent and substantial significant public health risk.”
But Johnson said there’s a “general feeling” that the health department’s orders cannot be issued as broadly as the governor’s and couldn’t be applied across the state or to all Vermont businesses.
“Generally, they’ve taken the position that they’re not going to use that power for broad application,” Johnson said of the health department.
Former Vermont Health Commissioner Harry Chen said Scott’s emergency measures “were great because they were necessary in such a kind of urgent crisis, where everything had to be aligned.”
But as coronavirus cases drop, he believes Vermonters will follow the state’s health guidelines voluntarily, without the need for further orders.
“We’ve all been through this. We knew what happened and the toll it took. So I think everyone will work very hard to keep us out of it again,” Chen said.
“Certainly the governor can reinstate [an emergency order], but I don’t think anybody wants that,” he said.
As Scott prepares to lift the state of emergency, he is also contemplating an executive order to continue certain pandemic response efforts — such as emergency food distribution and initiatives to house vulnerable Vermonters.
During the pandemic, those initiatives have relied on funding from the Federal Emergency Management Agency. Scott administration officials are concerned that, without an executive order, the state could lose its ability to receive federal dollars.
Scott’s emergency powers face little scrutiny
Unlike other states, where legislatures and governors have dueled over the use of executive power during the pandemic, Scott’s emergency response has faced little pushback.
Throughout 2021, lawmakers in 45 states have proposed legislation aimed at providing oversight of governors’ use of Covid-19 executive powers. Vermont is not one of them, according to the National Conference of State Legislatures.
In March, New York lawmakers moved to strip Gov. Andrew Cuomo of some of his pandemic authority. And there are still bills pending in Maine, Massachusetts and New Hampshire that would limit governors’ executive powers.
In Vermont, Democratic leaders in the Statehouse have supported the Republican governor’s response to the Covid-19 pandemic.
“I think we have been very fortunate to have the opportunity to have support, for the most part, from the Legislature. And when we needed them to step up and take Covid-related measures, they did,” Johnson said.
Scott’s emergency declaration, and the state’s Covid-19 response, have received a handful of legal challenges, but none have yet succeeded.
A former Newport UPS franchise owner fought the state in court after he refused to comply with the mask mandate. He has argued that the mandate is unconstitutional, but so far he has failed to prevail in court.
In September, a judge threw out a lawsuit brought by a Rutland gym owner who argued the state violated the Vermont Constitution when it closed down his gym as part of the Covid-19 response.
In December, a group of eight Vermonters sought an injunction against Scott’s state of emergency, arguing it had gone too far. In their complaint, filed in federal court, they argued “the state’s actions are based on false and misleading data, incorrect science, and flawed testing methods, and are unconstitutional.”
“Never in American history has a state so completely disregarded the constitutional rights of citizens to this extent,” the complaint said.
On May 20, U.S. District Court Judge William Sessions III dismissed the lawsuit.
Johnson said it will be “very difficult” to argue Scott’s emergency measures have been unconstitutional.
“We always took steps that were methodical and limited and time-limited,” Johnson said. “I think that’s evidenced by the chronology of the emergency order: It shut everything down fast. It opened everything up slowly, and as soon as the data supported the measures, we took them.”
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