A Government of (Suspended) Laws, Not Men

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John Adams, later to become the second President of the United States, enshrined the concept of “a government of laws, not of men,” in the Massachusetts state constitution of 1780.  Those words were supposed to convey a fundamental idea:  Government should be based on clearly written laws, and not on the unpredictable will of one or even a few people.

In Hawaii, we are indeed a government of laws and not men.  We have three branches of government, as most of the States and the federal government do.  Power is divided among them.

But for over a year now, one thing has thrown off the balance in dizzying and unpredictable ways:  the pandemic.  It’s allowed our governor to invoke “emergency powers,” which are in chapter 127A, Hawaii Revised Statutes.  Emergency powers are meant to deal with a dangerous but isolated event like a tsunami, earthquake, or flood.  But our Governor and his staff have figured out a way to extend emergency powers continuously, for more than a whole year now, by daisy-chaining emergency proclamations together.  We are now on the twentieth one

Every so often, most recently in the nineteenth proclamation, the Governor publishes a list of laws that are suspended by virtue of his emergency powers.  This list has been consistently around twenty pages long.  A twenty-page list can suspend a large number of laws, especially since it takes only one sentence to freeze an entire chapter of the HRS, such as “Chapter 89, HRS, collective bargaining in public employment.”

Notable suspensions we have written about before, and which still are in effect, are the suspension of all distributions of transient accommodations tax money to the counties, the Hawaii tourism authority, and other beneficiaries of TAT earmarks; and the suspension of tax clearances as a requirement for doing business with the government.  Other notable suspensions, where the government backed off a little after pressure from us and other good government groups, were of the public procurement code and government transparency laws.

With all of these suspensions, it’s very tough to figure out which laws still apply and which don’t.  It’s then left to the bureaucrats, the government officials, to tell us that oh, yes, they are still enforcing Law A administratively, even though the proclamation has suspended the law; or that they have made an administrative decision not to enforce Law B even though it’s not in any proclamation (but certainly could be included in the next one that comes out).  The enforcement could be arbitrary; it could simply depend on what a particular bureaucrat who is making the call that day had for breakfast that morning.

Furthermore, it’s tough to understand why multiple whole chapters of the HRS can be suspended using these few sections of the HRS and with virtually zero oversight from the other branches of government.

Our Legislature had a chance to rein in some of this arbitrariness.  Both the House and the Senate passed versions of House Bill 103.  The House and Senate conferees agreed on a Conference Draft to recommend to both houses.  The Senate passed its version.  The House recommitted it in its floor vote.  That killed the bill.  Too bad, so sad.

So where does that leave us?  If we believe in the idea that government should be one of laws and not of men, as John Adams taught us all, then we had better prevent further erosion of the laws and restore the integrity of those we already have.

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