Add checks to power of governor during emergencies

Photo by Charley Myers

This commentary was first published, with a different headline, on Sunday, Jan. 31, 2021, in the Honolulu Star-Advertiser.

After almost a year spent in a state of emergency, it’s time for the people of Hawaii to get a bigger say in the state’s COVID-19 response.

Gov. David Ige has undoubtedly meant well in trying to balance the competing interests of health and civil liberties, but public input has been sorely lacking. One of the governor’s earliest edicts, in fact, was to suspend the state’s open-records and open-meetings laws.

That order continues to this day, despite the public being told initially that the emergency was going to last only a few weeks to “flatten the curve” and prevent overloading our hospitals with coronavirus patients.

Meanwhile, the governor continues to unilaterally wield both legislative and executive power, allegedly under authority of the state’s emergency management statute. Based on the traditional “police powers” of states, the law allows him to suspend and alter existing law, seemingly without any end date. And he has taken full advantage of that power, even creating new criminal misdemeanors.

This has been a disturbing development to anyone who cares about civil liberties and democratic, accountable government. In response, the Grassroot Institute of Hawaii recently studied this issue and found the key problem to be the state’s emergency management law itself.

As stated in the report, “Lockdowns Versus Liberty,” written by institute policy director Malia Hill, the law plainly says there is a 60-day limit to any emergency period, but it says nothing about what happens once the 60 days are up. Thus, the governor has been able to extend the emergency period almost 20 times since last March, and there is nothing in the statute to prevent him from extending it indefinitely.

The result is that the constitutional balance of powers within our state has gone lopsided, and the voice of the people, as expressed through their elected representatives in the Legislature, has been diminished.

Since the courts have taken pretty much a hands-off approach to this issue, the solution is to restore that balance by adding a legislative check on the governor’s emergency powers. Hawaii should follow the example of other states and require legislative approval for the continuation of an emergency after a reasonable period, which for many states is pegged at 30 days. Moreover, the Legislature should have the ability to end the emergency at any time via a concurrent resolution.

And that’s not all. There are other measures Hawaii’s Legislature should consider adding to the law to further safeguard our civil liberties during an emergency. For example:

>> To reinforce the importance of preserving due process, the government should be required to demonstrate the reasonableness and necessity of an order that shuts down a business or deprives an individual of a right.

>> In the case of public health emergencies, there should be more of an effort to ensure that regulations and restrictions are narrowly tailored, with a clear connection between the restriction and the public health aim.

>> Finally, we should have better protection for the state’s transparency and sunshine laws, which should not be summarily suspended or heavily restricted in an emergency. If anything, we need more, not less, transparency in a health crisis.

None of the reforms envisioned here would prevent the governor from responding effectively to an emergency. But by giving the people a greater voice in the process and outlining protections for our civil liberties, we could improve public trust in government and reassure the people that their rights will be respected.

In the end, enacting these simple reforms would make it easier for all Hawaii residents to work together to handle the next crisis we face.

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