Phil Scott’s Power Grab

Recent news coverage of Brattleboro’s attempt to impose a mask mandate has revealed something that went under the radar in June, and I have questions.

Last week, Gov. Phil Scott rejected the Brattleboro ban. In doing so, the administration cited an executive order posted on June 15. The order came at the end of Vermont’s state of emergency, and outlined next steps in fighting Covid-19. They included use of the National Guard in “vaccination and other recovery services,” extending a measure allowing bars and restaurants to sell take-out alcoholic drinks, extending emergency housing measures, and…

What seems to be a remarkable concentration of power in the governor’s office: “Changes in public health mitigation measures or requirements impacting the general population shall require approval of the Governor.”

By itself, the order seems to apply to measures taken by the state. But just before that sentence comes a statement that the Vermont Department of Health “shall oversee COVID-19 related investigation and mitigation efforts,” including those by municipal authorities. That sets the stage for the assertion of executive power.

I’m no lawyer and this could all be completely kosher. But it seems a bit dictatorial to me, and I’m surprised that it failed to attract a single bit of coverage or criticism. Other parts of the order, like the housing bit and the liquor permission, were covered extensively. But not the assumption of unitary power by the governor.

Even now, the mentions are buried in coverage of the Brattleboro measure. Stories in The Reformer and VTDigger mention the order in their fifth paragraphs, and then only in the context of administration officials explaining Scott’s reasoning. No effort, as far as I can tell, to ask whether this is an overreach or business as usual.

I’m sure this has something to do with Dillon’s Rule, which severely limits local governments’ ability to do anything without the approval — or acquiescence — of the state. But even if this is perfectly legal in Vermont’s system, I still have questions.

First, how does this align with Scott’s refusal to impose a state of emergency? The order seems to indicate that the situation is serious enough to warrant absolute power over anti-Covid measures. And yet, Scott is steadfastly deflecting the idea that we’re in an emergency. I guess the real emergency isn’t the pandemic; it’s any local government’s desire to be tougher than Phil Scott.

Second, Scott won’t allow any local government to impose anti-Covid measures… but he’s absolutely fine with local school boards doing so. In fact, he uses the boards’ nearly unanimous mask mandates to justify his own inaction. Seems contradictory to me.

Third, if out system gives the governor complete veto power over local authorities, then why did the administration need to spell it out in a special order?

Again, maybe this is all perfectly kosher. But if anyone feels otherwise, this would be a good opportunity to test the assertion in court.

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