Why we issued a report urging reform of Hawaii’s emergency powers

The following is a slightly edited version of Keli’i Akina’s foreword to the new Grassroot Institute of Hawaii report “Lockdown Versus Liberty: How Hawaii’s Experience in 2020-21 Demonstrates the Need to Revise the State’s Emergency Powers,” released officially on Jan. 18, 2021.
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It is a sobering experience to sit ringside at a significant moment in history. As we have watched the COVID-19 pandemic unfold over the past year, we have witnessed a great conflict arise between individual liberty

Future historians will no doubt have plenty to say about how different countries, states and municipalities handled these competing concerns. Already, we have seen dozens of legal challenges arise from the lockdowns and closures of businesses. In due time, perhaps a consensus will emerge about where the balance should be struck between fundamental freedoms and the need to preserve public health in a pandemic.

For those of us in the midst of it, our responsibility is to shape this conversation from the standpoint of our “on the ground” experience. 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 not, “How can we keep this from happening again?” We certainly hope that the people of Hawaii will never experience another global pandemic, but there is no way to guarantee that the state will never be faced with another health crisis on this scale.

Rather, the question we 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?

In our new report, “Lockdowns Versus Liberty,” we detail the Hawaii governor’s COVID-19 orders and their implications for the fundamental freedoms of Hawaii residents. The governor does not have the power to suspend constitutional rights during an emergency, but the state government does possess broad powers to deal with emergencies in ways that can affect something as basic as your ability to go to work or walk in the park.

During the first days of the pandemic, many people wondered if the courts would step in to limit the broad emergency actions of the governor and mayors. However, it soon became clear that a reactive approach to the defense of freedom is flawed. As this report demonstrates, one major lesson from the COVID-19 experience is that the courts are not the best route to ensure that the government response is limited and measured from the very start of the emergency.

The COVID-19 lawsuits will undoubtedly go on for years to come — and may eventually produce some interesting and surprising new precedents — but during an emergency period, the courts are reluctant to second-guess the actions of a governor or mayor who is responding to a crisis.

The best approach would be to set forth before the next crisis new guidelines for dealing with an emergency that address competing health and liberty concerns. By drawing on the experience of the COVID-19 lockdowns, we can identify the areas most in need of reform.

The Grassroot Institute of Hawaii has analyzed Hawaii’s emergency management statute and outlined a new approach to handling emergencies that affect public health. The goal is to retain the government’s flexibility in responding to an emergency while adding certain checks and balances on that power. Foremost among them is the addition of a legislative check on the governor’s ability to indefinitely extend emergencies. In addition, there must be internal checks on the breadth of emergency action so that government restrictions on fundamental free- doms remain narrowly tailored to achieve a specific, rational purpose.

A system of checks and balances has always been the cornerstone of the defense of freedom in the United States. In The Federalist Papers, James Madison wrote at length on the fact that constraints on those who govern are the primary guarantee of liberty and guard against despotism. As another Founding Father, John Adams, put it: “Power must never be trusted without a check.”

In its current form, Hawaii’s emergency management laws allow for the extensive exercise of unchecked power. This is not a problem that can be fully addressed through the courts. The proper set of checks and balances, as outlined in this report, can be added only through legisla- tive action. Moreover, the impetus for such change must come from the people, through their elected representatives.

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.