Gov. David Ige’s latest round of COVID-19 emergency rules prompts me to ask a troubling question: When does a temporary state of emergency end and an unacceptable attack upon liberty begin?
In Hawaii, we now find ourselves facing hard questions about liberty and government power that were easy to dodge in the early days of the pandemic, when the emergency orders were a temporary response to a significant threat to public health.
But after more than 500 days in a state of emergency, it’s no longer reasonable to argue that constitutional considerations should make way for “temporary” measures.
Even the nation’s highest court has signaled that the clock has run out on the “temporary emergency” justification.
In November 2020, the Supreme Court granted an injunction against New York’s COVID-19 restrictions on religious services. It noted that the state’s emergency classification system left churches and temples “under a constant threat” that restrictions would come back, thereby endangering their First Amendment rights.
In his concurrence, Justice Neil Gorsuch wrote that the court’s deference to executive power and emergency actions might have been warranted when the pandemic was new, but now was no longer acceptable. He added, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
In the interim, have we allowed individual freedom in Hawaii to take a sabbatical?
In the last week, our brief taste of normalcy disappeared with the return of opaque and confusing restrictions. Though we have not officially changed tiers, we’re back to limiting gathering sizes and reducing capacity on businesses. Hawaii’s leaders are now openly considering another lockdown and encouraging citizens to report on one another about “underground events.”
To say that the government has moved the goalposts on reopening understates the experience of living 18 months under executive orders. More and more, it appears that the goalposts are little more than an illusion in the Wizard of Oz throne room. What’s more, we don’t know enough about who is pulling the levers or why.
All along, we have said that we respect the government’s role in protecting public health. Reasonable actions to mitigate the spread of COVID-19 are a good thing.
But where is the respect for individual liberty? Where is the recognition that these restrictions interfere with people’s right to earn a living? To gather with friends and family? To participate in religious rites or engage in political activity? Why don’t our leaders realize that you cannot turn an economy on and off like a light switch and not cause serious damage?
Over the past year, we have seen government edicts push local landmark companies out of business. We’ve seen incredible incursions on privacy, like the government’s attempt to require private businesses to verify their customers’ vaccine records. Overzealous enforcement of the emergency orders has resulted in ordinary people being treated like criminals for offenses such as taking graduation photos on the beach.
Worst of all, we have no idea when it will end. The Legislature declined to enact any kind of oversight or check on the governor’s powers during the 2021 legislative session. Meanwhile, like the churches in the New York injunction case, we are under constant threat of being jerked back and forth between emergency tiers.
Currently, the Grassroot Institute is planning a gala event for October in celebration of our 20th anniversary, but we have no idea if the restrictions will be too burdensome to host our event as planned. And we’re not the only ones confused and frustrated by the shifting rules and the state’s unclear future. Protecting public health is an important goal, but it is not the only one that matters.
In the early days of the pandemic, we were promised any restrictions would be temporary and told that we had to accept a “new normal” when it comes to preventing the spread of the coronavirus.
“Temporary” has since become “indefinite.” And we cannot permit a “new normal” where the conduct of our ordinary lives is defined entirely by the orders of one man.
In time, perhaps the judiciary will step in to reassert the importance of individual freedom. Already, state union members have said they will challenge the governor’s vaccine mandate for public workers. But ultimately the Legislature has to act.
This is why it was so important for our legislators to reform the state emergency powers law in the latest legislative session. HB103 would have restored the balance of power and put an end to unchecked executive authority. Unfortunately, the measure died at the last minute.
Our legislators need to take up this issue again — and this time, get it right.
“We the people” are the ones who define the limits of government power. It is up to us and our elected representatives to restore individual freedom.
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This commentary was Keli’i Akina’s weekly “President’s Corner” column for Aug. 14, 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.
