The Grassroot Institute of Hawaii’s new policy brief, “Lockdowns Versus Liberty,” was the topic Jan. 24, 2021, of radio host Johnny Miro’s interview with Institute President Keli’i Akina on the H Hawaii Media network.
The conversation focused on details of the institute’s new report, and what can be done to rein in the Hawaii governor’s unchecked power to act unilaterally and without time limit during states of emergency.
“In essence,” Akina said, “the governor has taken over the legislative function of government — that is the lawmaking side — suspending and changing some laws and creating new ones. That’s just not how our system is supposed to work.”
The H Hawaii Media network includes five Oahu radio stations — 101.1 FM, 101.5 FM, 107.9 FM, 97.1 FM, and 96.7 FM — all of which can be accessed online via hawaiistream.fm.
A full transcript of the 19-minute conversation is below.
1-24-21 Keli’i Akina with Johnny Miro on HHawaii Media radio network
Johnny Miro: Good Sunday morning to you. Aloha, everybody, I’m Johnny Miro. It’s time for our H Hawaii Media public access programming here on five locally owned radio stations on the island of Oahu, broadcasting terrestrially at 101.1 FM, 101.5 FM, 107.9 FM, 97.1 FM, and 96.7 FM. You can always pick up those frequencies at hawaiistream.fm. We have that option now available.
Joining us once again this morning would be the president and CEO of Grassroot Institute of Hawaii, Keli’i Akina, the recognized scholar, public policy spokesperson, community leader, here locally. Good morning, Keli’i.
Keli’i Akina: Good morning, Johnny, and good morning to all your listeners. It’s always great to be with you here. Aloha.
Miro: Aloha to you. Talking about a subject still in the minds of everybody. It’s been over a year now, but that word “lockdown” is still used quite frequently. Every day, people hear about it, people use that terminology. “Lockdowns Versus Liberty,” that would be a piece you just put out. It’s very, very enlightening, intriguing. The first question would be, when it comes down to these lockdowns, is there a light at the end of the tunnel?
Akina: Well, we started to use the term lockdowns in 2020. It’s already 2021 and the proclamations, what we call the emergency proclamations, are all still in place. Thankfully, many more businesses are able to open now, but there are bars, nightclubs and other businesses that are closed, and many services are still restricted.
You know, Johnny, the truth is, we don’t know when the emergency orders will end. It’s not that far back to Tier One — everybody remembers that on Oahu, where everything was shut down — we can easily slip back into that tier.
That has been us at the Grassroot Institute asking questions about what freedom means during a pandemic and what liberty means during a lockdown.
Miro: All right, you came up with that new report I just mentioned there at the top, “Lockdown Versus Liberty.” Tell us about this report.
Akina: Absolutely. The report is available free of charge, “Lockdown Versus Liberty.” It’s on our website at grassrootinstitute.org. Basically, this report takes a look at the lockdown orders in Hawaii during the COVID-19 pandemic, whether they’re from the governor or the mayor. We’ve had many of them, and we’ve analyzed them very carefully.
We asked this simple question: How can we handle these crises like COVID-19 better in the future? There are various problems that come with the lockdown orders, and we try to parse them out. What we’ve learned from the COVID-19 pandemic is something we’d like to apply to handling crises in the future. So our report looks at how our state reacted, what the impact was and what we could do better.
Miro: All right. In your opinion, what have we learned from the state’s pandemic response so far?
Akina: Well, I think we’ve learned that [the] one-size-fits-all approach is not really going to work for us. We actually think the state took a blunt-force approach to the pandemic that could have been done better if it were more narrowly tailored to help most people, with a clear connection between the restriction and the actual public health aim. Sometimes there’s been a huge disconnect. For example, why is it that people couldn’t walk in parks, and how does that relate to the actual public health aim? It was like using a sledgehammer to swat a fly, one size fits all.
In the process, the negative side is we destroyed businesses. We waived the state’s transparency and sunshine laws. And we ran over the government’s checks and balances. Those are not good things that took place. Hopefully, when we do this again, we’ll avoid those negative responses.
Miro: You mentioned checks and balances, Keli’i Akina, from Grassroot Institute of Hawaii. Does the government need checks and balances during an emergency?
Akina: Oh, absolutely. You know, government needs checks and balances all the time, especially when rights and liberties are being curtailed. As John Adams put it, “Power must never be trusted without a check.” You see, during emergency times, the governor has nearly unlimited power at his disposal, and that power needs to be checked by legislative action.
See, the Legislature, Johnny, represents the will of people, and that’s how we hold the administration or the governor in check. The same goes at the city level, at the county level for the mayors who should be in check by their local county councils, which represent [the] people.
In essence, the governor has taken over the legislative function of government — that is the lawmaking side — suspending and changing some laws and creating new ones. That’s just not how our system is supposed to work.
The judiciary and the Legislature should provide some check on the governor’s power, especially once the emergency has passed for a certain time limit. And the checks should be explicitly written into our emergency powers laws. That’s one of the things we look at in our report.
Miro: All right. Is there a time limit for these emergencies in Hawaii law?
Akina: That’s a very important question, Johnny, and it’s confused a lot of people. The answer to the question on a technical level is yes, there is a time limit, but our experience of the COVID-19 pandemic has demonstrated the problem with having a legal time limit.
Hawaii’s emergency-management statute includes an automatic termination clause, which says that an emergency period ends after 60 days — a lot of people have talked about that — or by separate proclamation. Now, of course, when you look at it, we’re almost a year in the same emergency and the restrictions haven’t terminated.
Now, how does the government get away with this? Well, that’s because the governor has renewed the emergency with successive proclamations, one after another, each with supposedly 60-day limits. And there’s nothing in the law that gives the time limit any teeth. That’s the difficult thing here. As we’ve seen, the law basically allows the governor to create an endless emergency period. That’s how you end up with these problems with the lack of a public voice in government during an emergency and the need to correct the system of checks and balances.
Miro: How would those checks and balances work?
Akina: Well, the first thing we should do is to address the endless lockdown problem by creating a meaningful termination clause. Here, we could follow the example of other states — at Grassroot, we always look for best practices in other states — and create a legislative check on the governor’s ability to extend his emergency proclamations indefinitely.
We should amend the law so that the Hawaii Legislature would be required to vote on whether the emergency proclamation should be able to continue after a period of 60 days. The Legislature could also have the ability to end the emergency period at any point by passing a joint resolution.
Now, what this would do, it would allow for … checks and balances, so more people could access the situation and weigh in on whether emergency powers are still needed or whether it’s time to lift them. That’s the important role democracy needs to play, even in an emergency.
Miro: All right, we’re speaking, once again with Grassroot Institute of Hawaii President and CEO, Keli’i Akina.
What do you think about the government? How should it handle transparency? Transparency is a big word you used. How should they handle those issues during an emergency?
Akina: Transparency is the ability of the public to be able to look into what’s going on in the decision-making of government. We had a problem early in the lockdown, which put us in a situation different from other states. Gov. David Ige suspended Hawaii sunshine and open-record laws. While he later revised that directive to require state agencies to attempt to meet open-meeting requirements and respond to records requests, we’re still not at the point of having restored full transparency and public access to government meetings.
It really shows how important it is to get that public voice in the emergency process through the Legislature, because that’s nearly a year without effective government transparency measures. A lot can happen behind closed doors.
In the early days of the lockdown, this was understandable. People can tolerate this. But the question is, is it really necessary anymore? Can’t most agencies respond to records requests according to the statutory requirements now? It would seem that they should be able to.
How long does the government get to operate without the sunshine laws?
Now, if you’ve tried to attend some of the committee meetings using teleconference methods, you know that it can’t replace real public access and the opportunity for live testimony.
We think at the Grassroot Institute that the public deserves much more transparency during an emergency, not less. It would be good to see the legislature weigh in to limit the extent to which government transparency and sunshine laws can be suspended during an emergency. This is where we should talk to our legislators. And the existence of a legislative check on the emergency period, that would be helpful as well.
Miro: All right. The report is “Lockdown Versus Liberty.”at grassrootinstituteofhawaii.org, if you want to check that out.
Does your report weigh in on the issues like business closures and mask mandates? Are these part of the civil liberties concerns?
Akina: Well, Johnny, one of the things we touch on in the report is whether health emergencies should be treated differently than other emergencies. Part of the reason is because of things like quarantine orders, mask mandates and restrictions on travel.
On occasion, actions that protect the public health have serious civil liberties implications. We’ve got to look at them, and it would be better if the government had to meet a higher standard and greater scrutiny in issuing those orders than it would in an ordinary emergency.
Government restrictions should have to be narrowly tailored, we feel, and show a clear connection between the restriction and the public health aim.
Now, in addition to this, in addition to reestablishing checks and balances, we’d also like to see a greater stress on due process. If individual liberties are in question or business is to be closed, the government should have to bear the burden of proving that the closure or restriction is necessary and reasonable. It shouldn’t simply have the blanket power to shut down businesses.
Miro: All right, what about privacy? Of course, that’s a big concern. Has the government respected the right to privacy during the lockdowns?
Akina: That’s an important issue, Johnny. I’m glad you raised that question. You see, throughout the pandemic, government officials have proposed collecting information such as temperature checks, facial recognition, ankle monitor use and even the use of drones to track movements and obedience to the quarantine orders. Many of those proposals have failed, but we’re now collecting health and personal information of travelers and their activity. We’re using technology and apps to do this.
This kind of government data collection is a slippery slope to eroding our right to privacy. We need to be vigilant about restoring as much privacy for the individual as possible, as soon as possible.
Digital privacy law is a moving target right now, but I think that the Hawaii Legislature should take up the issue this session and at least begins the debate on what should be protected, how long the state should be able to store and hold health information, and who can access it and so on.
Especially today with the available technology and frequency of hacks into that technology, the protection of information is so very important and crucial. We’re approaching a slippery slope on that.
Miro: I remember in the initial stages, there were attempts to try to put a stop to these emergency orders, on the Big Island especially. But could Hawaii see lawsuits against the lockdowns?
Akina: Well, a lot of people have asked this question and there have already been some lawsuits filed against Gov. Ige’s emergency orders, but most of them have not gone very far in court.
You see, you’ve got to understand how the judiciary thinks about this. As a general rule, courts tend to give the government a great deal of latitude during an emergency. While they will act if a fundamental right is threatened, they will also give a lot of leeway to the government’s argument that a particular action is necessary to protect public health. That’s why early on in the lockdown, most lawsuits in other states, even ones based on fundamental rights, like the challenge to the restriction on church attendance, they generally failed.
Now, more recently, there have been a few victories in lawsuits challenging the lockdowns. One case found that New York Governor Andrew Cuomo’s restrictions on houses of worship violated the First Amendment because they held religious activity to a different standard than secular activity.
Most notable, there’s also a case from Pennsylvania — the County of Butler v. Wolf — where a federal judge struck down multiple portions of the Pennsylvania governor’s lockdown measures. The judge, in that case, found a number of constitutional violations in the stay-at-home orders, restrictions on gatherings, and business closures. In the decision, the judge rejected the idea of a “new normal” that left civil liberties in an endless limbo where they could subordinate to an emergency order.
Now, that, however, doesn’t mean that Hawaii is going to see these similar results or that lawsuits are the answer. If we want to preserve our civil liberties during an emergency, lawsuits are too slow and reactive to be of much help and they’re frequently settled years later.
The idea is to address the problem before we end up in another situation like the COVID lockdown. That’s why we’re saying at the Grassroot Institute it’s important for people to go to the Legislature and get our legislators to act to change the laws to limit the kinds of restrictions that government can take [that] hinder personal freedom.
Miro: All right. The report, at grassrootinstitute.org, is “Lockdown Versus Liberty.” What do you think would be a better policy?
Akina: Well, we have to recognize the reality that this is a political problem, so the solution has to be political as well. We need to reform the state emergency power laws to better deal with the problem like a major health emergency and preserve individual liberties at the same time. No one’s saying throw caution to the wind, but we have to, at the same time, not throw our rights and our privacy and our liberties out as well.
Hawaii’s courts shouldn’t give such broad deference to the governor and the mayors’ emergency orders. Hawaii’s emergency powers law section, which is 127A-1C, needs to be updated to indicate that courts shouldn’t give such broad interpretive latitude. Otherwise, the governor isn’t even required to justify or explain his emergency orders.
Instead, what we see happening when these orders are issued is restrictions and regulations are not narrowly tailored. They don’t show a clear connection between the restriction and the actual public health goal. They’re just too broad. We really need to put a real-time limit on the emergency period, as I mentioned earlier, with the legislative check that requires the vote of approval to continue the emergency past that limit. The Legislature should be able to end the emergency by a concurrent resolution.
In essence, Johnny, we need to restore checks and balances to give people more of a voice in an emergency. But you know the old saying, the adage by Lord Acton, “Power tends to corrupt, and absolute power tends to corrupt absolutely.” What happens during emergencies is that power of government becomes absolute.
Miro: Is it possible, do you think, to reform the law and still effectively deal with an emergency?
Akina: Well, that’s the goal, and we believe that’s definitely possible. We’re not suggesting anything that doesn’t exist elsewhere, either in statute or in common law. We’re looking at best practices across the nation.
The point is not to hamstring the governor’s ability to protect the public health in an emergency. That’s an important role and we support him in that role. We recognize the importance of being able to take emergency action, and we agree that we need an emergency power statute. But what we’re simply saying is that it’s important to protect civil liberties in an emergency. With a few civil reforms, we can go a long way to balancing safety and freedom. And Striking that balance, Johnny, is really what it’s about.
The report that we’ve issued, “Lockdown Versus Liberty,” is available to everyone again at grassrootinstitute.org. It’s a technical paper filled with a lot of detail, but it’s worth at least going through the summaries that are included inside of it. I think people will find it of great value.
Miro: And on that point, we’ll wrap things up. Once again, I enjoyed having the conversation with Keli’i Akina, the president and CEO of Grassroot Institute of Hawaii, joining us this Sunday morning. Look forward to another conversation in the coming weeks. Mahalo, Keli’i, and have yourself a fantastic day.
Akina: Johnny, always glad to be with you and your well-informed audience. Much aloha. Have a great Sunday.