The real emergency is there is no balance of powers

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By Keli’i Akina

Now that the Legislature is back in session, there is one question that many of us are asking:

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Will the Legislature fix the state’s emergency powers law so that our governor will not be able to extend an emergency for as long as he or she likes?

For example, our current COVID-19 “emergency” has been going on for almost two years. 

As of next month, it will be two years that we have lived under executive orders; two years that we have seen democratically enacted laws suspended and “temporary” regulations imposed by edict; two years that the people’s voice in government has been constrained.

The governor’s emergency powers are derived from the state’s emergency-management statute. It says an emergency is supposed to end after 60 days. But Gov. David Ige has extended the COVID-19 emergency 25 times through “supplemental proclamations” — something not mentioned in the emergency-management statute. 

In effect, he has turned a 60-day emergency into one that will last at least 751 days, assuming he doesn’t extend it again when the current supplemental proclamation expires on March 25.

The Legislature had the opportunity last year to change the law, to require Legislative approval before emergencies can be extended. Unfortunately, that bill failed at the last minute in conference committee. 

The good news is that several bills have been introduced in the current legislative session that might finally restore the state’s vitally needed constitutional balance of power.

According to Malia Hill, Grassroot Institute of Hawaii policy director, one of the most promising of these bills is HB1585, which has already passed its first committee hearing. As she explained on the latest episode of my ThinkTech Hawaii program, “Hawaii Together,” the bill would require that any suspensions of law be justified and any edicts issued under the emergency statute be consistent with the state Constitution.

Also, the Legislature would be able to terminate a state of emergency by a two-thirds vote, and it could end an emergency “in whole or in part.”

As good as the bill is, however, Hill said it could be improved by strengthening protections for government transparency and civil rights. In addition, she would like the bill to require legislative approval before the governor could extend an emergency. 

HB1585 and its Senate companion, SB3285, are not the only bills that would reform the emergency-management statute. There’s also HB1416, which is very similar to the bill that nearly passed last year. 

Even the governor has proposed some bills that address the issue: HB2121and SB3089. They include limits on the suspension of laws and a nod toward constitutionality. But, as you might expect, they do not include a legislative check on the governor’s power to extend an emergency. 

One of the most interesting — and telling — things about the governor’s bills is that they would make explicit the executive’s ability to extend an emergency by proclamation. As Hill pointed out, “It’s almost like an acknowledgment that, ‘Hey, maybe this wasn’t 100% OK and legal up until now, but now for sure, I can 100% do that.’”

Regarding the governor’s suspension of Hawaii’s open-records laws as part of his emergency orders, Hill noted that there is a bill that has been introduced, SB2916, that would prohibit suspension of open-records and vital-statistics requests during an emergency. 

She said she hopes that SB2916 passes, but if not, “There’s no reason why we couldn’t see protections for transparency added to whichever emergency management bill moves forward this session.”

Hill acknowledged that reforming the emergency-management act is a challenge, in that nobody wants to inhibit the ability of the governor to respond to a true emergency. But the current law, she said, was written for more immediate emergencies — natural disasters such as hurricanes and tsunamis. Thus, the bills before the Legislature have been “specifically tailored to address the shortcomings in the existing law” that were exposed by the public policy responses to COVID-19.

Hill said the goal of the reform efforts is not to criticize the governor, but rather to restore Hawaii’s constitutional balance of powers.

“It’s not so much [about] getting these mechanisms to stop the governor as just ending the ambiguity of this 60-day time limit and finding a way to make sure that people have a voice in the way that an emergency is managed, via their elected representatives.”

Ultimately, she said, even if the Legislature does rein in the governor’s emergency powers, it still might not step in to terminate an “emergency” — unless the people demand it. 

In the end, there’s no substitution for getting involved and letting your own voice be heard.
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Keli’i Akina is president and CEO of the Grassroot Institute of Hawaii

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