New report calls for reform of state’s emergency powers

The following was a news release issued by the Grassroot Institute of Hawaii on Jan. 18, 2021.

Hawaii’s Legislature needs to step in to prevent the extensive exercise of unchecked unilateral power, says the Grassroot Institute of Hawaii

HONOLULU, Jan. 18, 2021 >> Hawaii’s emergency-management laws need to be reformed to prevent the extensive exercise of unchecked power by the governor, says a new policy brief by the Grassroot Institute of Hawaii.

Titled “Lockdown Versus Liberty: How Hawaii’s Experience in 2020-21 Demonstrates the Need to Revise the State’s Emergency Powers,” the report recommends specifically that the state Legislature step in and restore the checks and balances that have gone missing during the public health emergency of the past 10 months, declared in an effort to deal with the spread of COVID-19.

“This is not a problem that can be fully addressed through the courts,” says Keli’i Akina, institute president, in remarks introducing the report. “The proper set of checks and balances, as outlined in this report, can be added only through legislative action. Moreover, the impetus for such change must come from the people, through their elected representatives.”

Written by Malia Hill, institute policy director, the report provides a thorough review of the current state of emergency, including each of the almost 20 emergency proclamations issued by Gov. David Ige. The first one was issued on March 5, 2020, which by the clear language of Hawaii law was supposed to have lasted for only 60 days.

Writes Hill, “Though there is a sixty-day termination clause on those emergencies, the termination has no teeth. Nor is the governor required to justify or explain his emergency orders.”

The report also urges that a distinction be made between public health emergencies and other sorts of emergencies.

“After so many months spent in layered county and state regulations,” Hill says, “it is clear that there is a need to differentiate a health emergency from other types of emergencies.”

Hill discusses why the many emergency edicts have so far mostly received a pass from the state’s courts, though that could change as the suspensions of so many of our civil liberties continue beyond what many consider to be reasonable limits. Meanwhile, the Legislature has also failed to exercise any oversight in any meaningful way, leading to the institute’s calls for legislation to correct that.

Recognizing that ultimately the issue is a political problem, Hill suggests the following “five basic principles for dealing with emergencies touching on public health”:

>> “Restrictions and regulations should be narrowly tailored, with a clear connection between the restriction and the public health aim.

>> “We must reinforce the importance of adherence to the standards of due process and protection of individual liberties. The government should bear the burden of proving the necessity and reasonableness of an order that deprives an individual of a constitutional right or shuts down a business.

>> “Emergency actions must demonstrate respect for the balance of powers. The legislature should not give the executive an open-ended ability to exercise legislative authority (e.g., via the suspension and alteration of state law, the creation of new laws and crimes, etc.).

>> “Government should strive for more, not less, transparency in its decision-making and directives.

>> “After a reasonable period of time, emergency directives should be subject to a meaningful ‘check’ on executive power. This can come from the state Legislature or, in the case of actions by a mayor, the county council.”

Said Akina: “For future generations, the impact of business closures, gathering restrictions and rules about hiking and swimming will be academic. For us, they are all too real.

“Given this perspective, the question a think tank dedicated to individual liberty must ask is … ‘How can we handle these crises better in the future?’ In other words, what have we learned from the COVID-19 pandemic and the state of Hawaii’s response? And how can we put those lessons into action so that future crises can be dealt with more effectively while placing a lower burden on individual freedoms?

“The pandemic and lockdown have demonstrated the inadequacy of our state’s current emergency powers law to deal with a public health emergency of this scope. Fortunately, we can take what we have learned from this experience and put it to good use.

“If we work together, we can ensure that Hawaii is better prepared to handle future emergencies via reforms that will protect public health without infringing upon our fundamental freedoms.”

Copies of “Lockdown Versus Liberty” can be viewed at or downloaded from the institute’s website, at www.grassrootinstitute.org.

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