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Testimony — HB103 HD1, relating to emergency powers

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The following testimony was submitted by the Grassroot Institute of Hawaii for consideration by the Hawaii Senate Committee on Judiciary and Hawaiian Affairs on Feb. 11, 2021.
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To: House Committee on Judiciary & Hawaiian Affairs
Rep. Mark M. Nakashima, Chair
Rep. Scott Z. Matayoshi, Vice Chair

From: Grassroot Institute of Hawaii
Joe Kent, Executive Vice President

RE: HB103 HD1 — RELATING TO EMERGENCY POWERS

Comments Only

Dear Chair and Committee Members:

The Grassroot Institute of Hawaii would like to offer its comments on HB103 HD1, which would amend the state’s emergency management statute to require the approval of the Legislature to extend a state of emergency. 

If enacted, this bill would take an important step toward addressing an oversight in the state’s current emergency management law that was not apparent until the COVID-19 pandemic: the lack of a meaningful legislative check on the governor’s emergency powers.

At present, the law includes a 60-day limit on emergencies, but does not address what should happen if an emergency exceeds that limit. Thus, it is possible for the governor to extend an emergency period indefinitely, with little input or oversight from the legislative branch. 

Given that the emergency management law already gives broad legislative powers to the executive, the result is an upsetting of the balance of powers in the state for an extended period of time.

Without a voice in government via their elected representatives, the people lose trust in their elected officials. It is clear that the Legislature must play a larger role in any proposed extension of an emergency period and act as a safeguard for the rights, safety and health of the public.

By requiring legislative approval for the extension of an emergency past a 60-day time limit, HB103 would take a positive step toward protecting the balance of powers and the public trust. However, we suggest that the committee make two major changes to further advance that goal.

>> Remove the clause that allows the emergency to continue “automatically” if the Legislature fails to take action on the governor’s request to extend the emergency, as this frustrates the intent of the bill.

We appreciate that there might be occasions where the Legislature wouldn’t hesitate to approve the governor’s proclamation, but there is still a useful purpose to requiring official approval via concurrent resolution. 

Removing the “automatic renewal” clause would ensure that Hawaii’s residents always have the chance to weigh in on the governor’s actions. It also would emphasize the importance of maintaining the constitutional balance of powers, even in an emergency.

>> Have Hawaii follow the example of other states and allow the Legislature to end the emergency period at any time by concurrent resolution.

Finally, we ask that the committee consider how to better protect civil liberties during an emergency. 

In our recent policy brief, “Lockdowns Versus Liberty,” we looked at how the state’s emergency management law could be reformed in light of the lessons learned over the past year.

In addition to the need for a legislative check and restoring the balance of powers, we identified three principles that should be considered while dealing with emergencies touching on public health. 

They are: (1) ensure that restrictions and regulations are narrowly tailored, with a clear connection between the restriction and the public health aim; (2) reinforce the importance of due process standards by requiring the government to bear the burden of proving that an order which closes a business or deprives an individual of a right is both necessary and reasonable; and (3) strive for more transparency in decision-making and directives, including protections for existing sunshine and open-records laws.

Helpful and well-considered additions to this bill include both the rational-basis requirement for the suspension of laws and the clarification that emergency actions must remain consistent with the Hawaii Constitution. However, it would be good to see a firmer statement in favor of preserving government transparency, especially the state’s sunshine laws and open records, as well as stronger guarantees that emergency orders that close a business or deprive an individual of a right would also have to demonstrate a rational basis for the restriction.

The COVID-19 pandemic has forced us to reevaluate how our state deals with emergencies. We have learned much about what we do well and what could be improved. This bill is a good start toward making our state better-equipped to handle future emergencies.

Thank you for the opportunity to submit our comments.

Sincerely,

Joe Kent

Executive Vice President
Grassroot Institute of Hawaii

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