Failure of emergency powers reform is major disappointment

The commentary below was Keli’i Akina’s weekly “President’s Corner” column for April 30, 2021. If you would like to have his columns emailed to you on a regular basis, please call 808-864-1776 or email info@grassrootinstitute.org.

If the legislative session that ended yesterday had been a sporting event, it would have earned an evocative historical nickname like The Fumble or The Phantom Punch.

That’s because just before the last whistle, the Hawaii Legislature dropped the ball and left viewers frustrated and disappointed.

Going into this year’s session, the expectation had been that the Legislature would address the biggest issues to come out of the COVID-19 pandemic and lockdowns: the fragile economy, the state’s overstretched budget, the flaws in the state’s emergency management statute and issues with health care access.

Unfortunately, their efforts were at best half-measures and at worst total fumbles.

Rather than learning the lessons of the pandemic and saving for a rainy day, the Legislature continued to spend like it was 2019.

Instead of reducing the regulatory and tax burden on residents and local businesses, legislators proposed a wide series of tax hikes. While most of the worst increases failed, a few were approved, including for the rental car surcharge and conveyance tax.

But the biggest disappointment has to be the failure of the bills that would have reformed Hawaii’s emergency powers law. HB103 would have addressed the problem of endless lockdowns under the current law by restoring the balance of powers.

In its final form, HB103 stated that all emergency actions must be consistent with the state Constitution; put parameters on the suspension of laws and required justification for those suspensions; and added a legislative check on the governor by allowing the Legislature to end an emergency by concurrent resolution.

Many of the elements of the bill reflected recommendations made in the Grassroot Institute of Hawaii report Lockdowns Versus Liberty.”

A related bill, SB134, would have prohibited suspension of open records requests during an emergency, but when that measure failed to make it out of conference committee, HB103 was our last hope to address the flaws in the emergency powers statute — something desperately needed to improve transparency and restore trust in both our elected and unelected officials.

HB103 made it through conference committee and even passed the Senate. But then, in a blatantly opaque move, the House sent the bill back to committee, effectively killing it through a political maneuver.

Another important post-COVID reform bill, HB224, received the same treatment. The measure was a modest attempt to reform Hawaii’s so-called certificate-of-need laws, which have been shown to raise the costs and reduce the availability of health care.

In particular, it would have suspended the state’s certificate-of-need requirements for psychiatric and chronic renal dialysis services, and would have been an important first step toward reevaluating the state CON laws as a whole.

The most frustrating thing about the deaths of both HB103 and HB224 is the fact that they never received a real vote. Had the bills failed in a floor vote, at least Hawaii residents would know where their legislators stood on these issues. Instead, they were killed through a political mechanism that shields lawmakers from accountability and further strains the public’s trust in government.

After a difficult year, the people of Hawaii deserved to have their legislators make a real effort to address the effects of the pandemic and the lockdowns, as well as focus on improving their access to health care. Instead, after patiently watching the legislative game play out for four whole months, they saw important reforms fail at virtually the last minute.

While a loyal fan would say, “There’s always next year,” it’s fair to start questioning whether we’re really all working together or whether some people are operating from a different playbook.

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