With Hawaii’s COVID-19 state of emergency now in its 11th month, the Grassroot Institute of Hawaii this week — on Martin Luther King Jr. Day —released a new policy brief, “Lockdown Versus Liberty,” which calls on the Legislature to step in and restore checks and balances to the state’s emergency powers.
The brief was written by Malia Hill, institute policy director, who joined Keli’i Akina on his “Hawaii Together” program, on the Think Tech Hawaii network, to discuss why she wrote it and its specific policy recommendations.
The significance of the release date was not lost on Hill.
Akina asked, “Why is it that many people feel that these liberties are threatened now during the COVID response time?”
She responded, “That’s the big question, and I think it’s complex. We started to think about freedom in ways that I don’t think we’ve thought about in decades, honestly. That’s what makes the discussion on today honoring Martin Luther King so poignant, because maybe that was the last time we really thought, ‘What does it mean to be free?’
“What is liberty really, [and] not just in the big sense. Everyone knows freedom of speech and these big liberties, but the small things we don’t think about, and all of a sudden, we [don’t] have [them]. Over the past year, we’ve thought about freedom in different ways because you can’t deny that our lives changed under the lockdown. Things that we never even thought about as freedoms — like the right to go for a walk, or the ability to go to work — all of a sudden, became restricted.”
View the entire interview below; it’s about 30 minutes. A complete transcript follows.
Malia Blom Hill with Keli‘i Akina on “Hawaii Together”
Keli’i Akina: Aloha, everyone. Welcome to “Hawaii Together” on the ThinkTech Hawaii broadcast network. I’m Keli’i Akina, your host and the president of the Grassroot Institute of Hawaii.
At the institute, we stand for individual liberty, free markets and limited, accountable government, and today is a wonderful day to think about those things because we celebrate the anniversary of Martin Luther King Jr., and we recognize that he was a man who stood greatly for civil liberties.
My guest today is the policy director for the Grassroot Institute of Hawaii. We’re going to be talking a bit about the relationship between the COVID lockdowns and civil liberties.
There’s a very difficult thing that our government has to do, and that is to balance the need for public safety and health along with the preservation of the liberties of individuals. That’s not always easy. I think we’ve been able to look at this in a very careful way at the Grassroot Institute.
I’m very pleased with the work that was led by Malia Blom Hill, our policy director, which has resulted in a policy report that has been released today, in which we carefully examine the things that are taking place in the lockdowns, particularly the use of government power in order to restrict liberty, and ask what’s going on and what’s good about it and what’s not so good about it, and what’s the path forward.
My guest, Malia Blom Hill, is a graduate of law school. She has been a policy expert for many years, working for at least a decade at the Grassroot Institute. Welcome back to the program, Malia. Glad to have you here.
Malia Blom Hill: Hello. Thanks for having me again.
Akina: Tell us a little bit about your background, your education and how you’ve been working in the policy world for the last many years.
Hill: OK. Well, I have a background in history and philosophy. I attended Columbia School of Law at Catholic University of America, and then I’ve spent quite a bit of time working in public policy, think tanks and some activism in both Washington, D.C., and back in Hawaii. Before I went to law school, I even worked in the Hawaii Legislature for a little bit in the office of Mark Moses, so I have one foot in D.C. and one foot in Hawaii.
Akina: Well, you do great work with the team, and we appreciate it.
On one hand, we have to take care of the health needs of the public. There’s no question about it. We don’t want to say, “throw caution to the wind” during this COVID crisis. Yet, on the other hand, we want to preserve the civil liberties of all people and the rights to exercise our constitutional liberties. Why is it that many people feel that these liberties are threatened now, during the COVID response time?
Hill: That’s the big question, and I think it’s complex. We started to think about freedom in ways that I don’t think we’ve thought about in decades, honestly. That’s what makes the discussion today honoring Martin Luther King so poignant, because maybe that was the last time we really thought, “What does it mean to be free? What is liberty, really?” — not just in the big sense.
Everyone knows freedom of speech and these big liberties, but these small things we don’t think about, and all of a sudden, we have. Over the past year, we’ve thought about freedom in different ways, because you can’t deny that our lives changed under the lockdown, and things that we never even thought about as freedoms, like the right to go for a walk, or the ability to go to work, all of a sudden became restricted.
As of December, there have been some 18 separate proclamations directing what is and what is not permissible, through the lockdown. It outlined everything from which businesses could operate to where you could go and when. It really made people think about what they had lost. Obviously, this became a big political touchstone, but in the heart of it, there’s this question, “What is freedom?” We’ve definitely had that restrained, things that are not in the Constitution because no one would ever think of the right to eat at a restaurant being a constitutional right. Yet when it’s taken away from you, you become very aware of where the limits of your rights might be.
Akina: At the very beginning of the COVID situation, there was some question as to whether or not the lockdowns were constitutional. In general, most scholars answer that, “Yes, they were.” At least, at that time. How so, Malia?
Hill: Yes, so we had some — if I may plug for Grassroot Institute — there’s a really great webinar that you can still find on our website where Robert Thomas, the attorney, explains in great depth the fact that lockdowns, or emergency actions, are generally constitutional. Emergencies don’t create more government power. The rights that you have always exist. There’s even a very famous Supreme Court case that talks about how the Constitution was created in a time of emergency, so emergency doesn’t create power. The state has the same limits on powers. You have the same civil rights during an emergency that you do during regular times. It’s just that we, all of a sudden, have this exercise of emergency power that we’re not familiar with ordinarily.
The thing is, when we’re talking about this exercise of emergency power, we’re basically talking about police powers, the powers of the state. The funny thing is, with police powers — that’s everything from occupational licensing laws and speeding laws to things like the lockdown — one of the things is that courts, when it comes to looking at what an executive does in an emergency, they tend to give the state a bit of leeway. They tend to judge it as an emergency situation and consider it a bit of a political question. They don’t hammer down, like some people are expecting them to, in light of the pandemic, in light of the first lockdown cases and such.
Your fundamental rights — speech, press, free exercise — those are always fine. It’s really, “What is a fundamental right?” How will a court look at something lesser, like: There’s nothing in the Constitution about eating in a large group at a restaurant. If the government can come up with a good reason — limiting disease — for putting out that directive, the court in an emergency is going to say, “OK, you kind of have a good reason for that.” And they’re going to give the government, the state, a bit of leeway to respond to the emergency.
Akina: In your work, “Lockdowns Versus Liberty,” which is the report from the group that you led recently at the Grassroot Institute, you talk about some of the legal challenges to the lockdowns. How have they fared in court? Many people have put a lot of faith in these as being the pathway to preserving our individual liberties. As I understand it, these court challenges haven’t been very successful.
Hill: Yes. For the most part, the courts have allowed the lockdown orders to stand. Now, there are some differences. Often, it depends on what a specific governor’s restrictions on their actions might be, according to that state law. Looking for that big, big civil liberties case, especially early on, it just wasn’t happening.
In Spring 2020, the U.S. Supreme Court actually rejected a challenge to California’s regulation of church attendance as part of their lockdown. The chief justice basically said they weren’t going to second guess the executive trying to protect public health. However, there is a theory that time is a bit of a factor here, and that what courts were saying early on might change as time goes by. We were starting to see that by this winter rolled around.
Early in the lockdown, the Supreme Court decides not to intervene in California’s restriction on a religious activity. But then, by the time this fall hit, the Supreme Court actually did issue an emergency injunction against New York Gov. Andrew Cuomo’s limitations on religious gatherings. The majority noted that there had been a conflict between the restrictions that had been placed on businesses in the same area as these houses of worship, and suggested that it might be a possible First Amendment violation.
One thing everyone quotes from that decision is Justice Neil Gorsuch, who basically, specifically asked how long this “emergency” justification can be used, and suggested that this is kind of a problem. “We can’t shelter in place when the Constitution is under attack,” he wrote. It gets out this idea that they’re willing to give some leeway for emergencies, but there might be a limit, the point at which they say, “I don’t know. Your emergency rationale, it’s starting to wear thin at some point.”
The Second Circuit Court of Appeals ended up agreeing with the Supreme Court in that case, which was brought by the Roman Catholic Archdiocese of Brooklyn and a group of synagogues and Jewish groups. Cuomo’s orders regarding those houses of worship, they said, violated the First Amendment because it had greater restrictions on religious activities than secular ones.
But you need to remember, this isn’t a strike down of the lockdown as a whole. This is about unequal treatment. That takes us back to what we’ve said before, which was that your civil liberties are always your civil liberties, emergency or not.
To strike down the lockdown as a whole, the only major victory is from Pennsylvania, and we will still have to see because it was a district court in Pennsylvania. The case is called County of Butler v. Wolf. There, a federal district judge did strike down lots of pieces of the Pennsylvania lockdown, and he subjected it to the highest form of scrutiny, decided that the stay-at-home orders and the closures of businesses violated the 14th Amendment due process clause: Closing businesses violated equal protection.
That’s one big win for people who believed that the lockdown is a violation of constitutional rights. But for the most part, courts give a lot of leeway to the governors and the mayors who are responding to an emergency.
Akina: What do you think the implications of the Pennsylvania case are going to be going forward, in terms of challenging the lockdowns?
Hill: It will be really interesting. I think out of all the cases that I’ve seen and studied over this course, it’s the most interesting because, if it were to wind its way all the way up to the Supreme Court and the Supreme Court were to agree, it really strengthens the limits of due process and equal protection, because all of a sudden, in this case, the judge basically talked about this right to earn a living. He’s enshrining that in the Constitution. When we talk about fundamental rights, we usually are talking about the ones that are in the Bill of Rights, the ones that we all can list, just enumerate it.
Then there’s some other constitutional rights that are considered fundamental, but they’re not in black and white writing. They’re the ones that the courts have decided are fundamental, things like marriage or those kinds of things, control over one’s medical decisions. These kinds of things have been kind of a privacy. Privacy is the big one, have been found in the Constitution and now treated as part of fundamental rights. If this Pennsylvania case got traction in the Supreme Court, of course the Supreme Court could hear it and say, “I don’t agree at all.” Then we’re where we are. If they adopt some of these, it really expands our conception of rights in a very interesting way.
Akina: I have many more questions for you, Malia, but I’d like to take a pause right now to acknowledge our audience. Thank you for watching. You’re welcome to call questions in or to send them to the studio.
We have one that has just come in. I’ve not read it yet. I’m going to open it up now and throw it out to you, OK? A questioner asks, “Do you believe the theory that a lot more people are protesting because people have more time from the lockdown?” Interesting question.
Hill: That is an interesting question. Unfortunately, it’s not my scope of expertise, so all you’re getting is just my personal opinion. I would say that I think the lockdown has given everyone a lot of time to sit and think about things, and that in some people, I think it does express itself a dissatisfaction with the government or others. That’s just a personal guess. I do think the lockdown does have a connection to increase in protest.
Akina: Thank you. Before we go to a brief break, I’d like you just to describe the research report we’ve just released, in fact, today, by the Grassroot Institute, “Lockdowns Versus Liberty.” Just tell us a bit about it, and then we’ll go to a break.
Hill: OK. We, inspired by this whole question of, “What happens to constitutional rights during a lockdown? Is there a way to preserve constitutional rights?” — in essence, “Is there a way to do it better?” That’s really what inspired us: This is the situation. This is how we responded to this COVID lockdown.
We’ve seen some problems come out of it in Hawaii specifically, and so we looked at the legal situation, both in the courts and in the statute that enabled Gov. Ige’s orders and lockdown, and asked, is there a way to look at this, examine what happened and perhaps make recommendations for a way to respond to an emergency while doing a little bit of a better job at safeguarding civil liberties?
Akina: This report is available online right now at the Grassroot Institute website, www.grassrootinstitute.org, that’s grassroot, not grassroots, but it’s grassrootinstitute.org. It’s available free of charge.
We’re going to come back after a brief break and ask Malia some other questions that are very pertinent to the subject, and we invite you not to go away. This is ThinkTech Hawaii’s “Hawaii Together.” I’m Keli’i Akina. We’ll be right back after a brief message.
Welcome back, and thank you for staying with us. I’m Keli’i Akina and I’m interviewing our policy director at the Grassroot Institute, Malia Blom Hill. Malia, we’re talking about
“Lockdowns versus Liberty,” the report that was just released today by the institute.
One of the things that you point out is that it’s not likely that, at least in the short term, we’re going to be able to sue ourselves or our way out of the lockdowns.
But there may be a different route that actually has a long-term implication and changes the law itself, and that is to take a look at the state’s emergency powers, which you’ve basically examined very well in the report.
When you look at the state’s emergencies powers, how is that a pathway to being able to preserve our civil liberties more?
Hill: If you look at the the COVID response lockdown, you have to look at what was it that made it possible, how is it that this whole system works. What it is is the … Emergency Management Act, which is section 127A of the Hawaii Revised Statutes. That’s basically what lets the governor declare an emergency, puts out what a governor or a mayor can do to deal with an emergency, what limits there are on his power, or her power, to handle an emergency.
Hawaii’s emergency powers act is very, very broad. It basically gives the governor the ability to take any and all steps necessary or appropriate to carry out the purpose of the chapter, which is dealing with an emergency. It gives him the power to do what he needs to do to deal with an emergency. What is an emergency under this law? An emergency is what the governor says it is.
Akina: That is indeed very broad, as you say. What are some of the problems you see with the way the emergency powers law is framed at this time?
Hill: I think the biggest problem is the vagueness, especially regarding the end of an emergency. The law, as it stands right now, has an automatic termination clause that declares that the emergency ends 60 days after the proclamation, or if another proclamation is issued. But there’s no follow-up condition or consequence if that emergency exceeds the 60-day mark, which is why well past 60 days, we are still in emergencies. What the governor has done is just renew the emergency over and over and over again.
What that means is there’s really no check on the governor’s exercise of his emergency power. It allows for an infinite emergency. That leads to a problem with the balance of powers in Hawaii government, because all of a sudden, the governor, the executive, has become something of a super legislator. In his emergency proclamations, he suspends laws left and right.
He basically creates new law, creates a new crime in terms of violating the mask mandate or the shelter-in-place, all these different things that you’re required to do. If you break them, as the people have found out from citations, that is a crime under Hawaii law. So the governor has legislated a new crime. He has lifted the provisions of existing legislation. It really upsets the balance of power in the state.
That also kind of cuts out the people, because the Legislature is our voice, our ability to kind of come in and opine on the actions of government.
Akina: What you’re really suggesting is that, rather than going to court or in addition to going to court, because there will be people who do that nonetheless, it’s important for us to contact our legislators and get the Legislature to act to actually change the law. Now, what are some of the things you’d like to see happen, or some principles upon which we would change to the law?
Hill: In this report, we came up with five basic principles to deal with emergencies that touch on public health. This experience shows us that there might be a reason to treat health emergencies as differently than we do other emergencies, because it’s only with this health emergency that we’ve gotten this infinite emergency state and this real need to create different checks and balances on it, as it is.
The five basic principles we came up with is that restrictions and regulations need to be narrowly tailored. There needs to be a connection between the restriction and the public health aim, not just these, sort of, general restrictions. Everyone knows we’d get these restrictions, and we’d go, “What is that for?” I think that that needs to be pulled in. We have to reinforce the importance of due-process standards and protecting liberties.
The government should bear a burden of showing that it’s necessary and reasonable to deprive someone of a liberty or a constitutional right or to shut down a business. It shouldn’t just be OK to just do it. You have to show that there’s a reasonable safety thing there, that you aren’t doing too much, more than needs to be.
Also, you need to have respect for balance of powers. The Legislature should not give the executive this open-ended ability to exercise legislative authority, basically suspension and alteration of state laws, the creation of new laws and crimes.
The government should strive for more, not less, transparency in its decision making and directives. That should just be a principle all the time, but especially in the state of emergency.
Finally, after a reasonable period of time, there should be a meaningful check on executive power.
This can come from the state Legislature, or if we’re talking about actions from a mayor, from the county council, but there needs to be some kind of approval for an emergency to continue.
Akina: Now, are there such limitations in the laws that are in place in other states?
Hill: Yes. We’ve actually looked at quite a few other states, and a lot of them have some form of legislative check like we talked [about]. Very frequently, there will be a 30-day emergency limit, after which the governor and the Legislature have to approve the continuation of the emergency, or the Legislature can terminate the emergency at any time by joint resolution. That’s the kind of thing, just state after state, that is pretty standard on the line. That’s one of the things that we’re recommending here.
Akina: We have another question from a viewer. Let me read that to you, Malia: “You referred to the freedoms we take for granted that are not specifically mentioned in the Bill of Rights. Aren’t those unenumerated freedoms covered by the Ninth Amendment, which states “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The question is this: Might these lockdown measures be susceptible to a Ninth Amendment challenge?
Hill: It’s a good question. The lawyerly answer is, until the court says that that works, then it doesn’t, and therefore it wouldn’t be more successful than anything else. But there are theories, there are legal theories that go, “If it’s not there, then the people didn’t want you to be able to do it,” to put it in the short term.
So there’s a lot of ways of looking at it, and some of the earlier ways of looking at the Constitution are way — and it’s not surprising that you reached back into the text of the Constitution for that, because some of the older jurisprudential philosophy has a more restrained look at the powers of the state, and you can’t legislate it if we didn’t specifically say that you could.
Philosophically, I think that’s fantastic, but would a court actually give that credence? Well, courts tend to just say. they subject anything that burdens a right, that isn’t an enumerated right, with something called rational basis review, which is just, “Hey, does the government have a rational basis for this restriction?” On some levels, sometimes that’s actually applied so loosely that for some courts, if the government could come up with just any kind of reason, even if it isn’t a great one, it would still stand up to review.
It’s one of those things that we would like to see, if you’re really strong on this, you’d like to see some changes in how the courts look at it. But that’s a very slow, slow process, which is one of the reasons that I say that suing your way out of a lockdown is not the best way to defend civil liberties. Courts say it’s a political question, and the answer is political.
Akina: What you’re ultimately telling us is that until the courts act, the best route for us is to pursue changes of the law via the Legislature. What do you think the prospects are for the Legislature embracing some of the principles that you’ve espoused?
Hill: Well, I would like to think that the Legislature would see this issue, would see the same problems we do, and have the same concerns about the balance of power and the fact that they do have a responsibility here to be the voice of the people, and that there is a problem when the governor can basically take on the legislative function with no check for just months and months on end.
As originally framed, the statute conceived of a 60-day emergency, after which things would be back on track. But this is a different kind of emergency.
Last year in the Legislature, they did introduce a bill that would have treated health emergencies differently, and while we had some problems with the language of that bill, if the intention was to say, “Hey, there are some problems here with the way emergency powers work in Hawaii, and we need to re-examine that,” that, I think, is very promising.
Akina: Well, Malia, thank you for spending time with us today and thank you for working on “Lockdowns Versus Liberty.” Before you go, would you tell everyone once again how to get ahold of the report, and what’s one major takeaway that they can have from the report?
Hill: Thank you. I think the important thing to take away from the report is that, if you are concerned about preserving your civil liberties in an emergency, don’t wait on the courts. It’s a slow process, and in all the time that you wind your way through the courts, you are still dealing with the problem. The answer is: This is in the power of your elected officials, and therefore it is in your hands. The people can demand change, they can demand reform of our emergency powers law, so that our rights are better protected.
I guess my message, my takeaway is: The answer is up to us, and we can push for reform. We can push our Legislature to reform emergency powers, to preserve civil liberties even during an emergency, even during a health emergency like a pandemic, without endangering public health.
Once again, to get ahold of the report, you just go to the Grassroot Institute website at grassrootinstitute.org.
Akina: Thank you very much, Malia, I appreciate you being with us here today.
To everyone out there watching, it’s very important for us to articulate the principles of liberty in order to preserve liberty, and that’s one of the purposes of the Grassroot Institute. We welcome you to watch all that we produce as well as receive our newsletters. Once again, you can sign up at grassrootinstitute.org.
Until next time, I’m Keli’i Akina on ThinkTech Hawaii’s “Hawaii Together.” Aloha.