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Why reform of Hawaii’s emergency powers law failed, Part II

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A recent article by Grassroot Institute of Hawaii research associated Melissa Newsham, “Why reform of Hawaii’s emergency powers law failed,” was the basis of Keli’i Akina’s latest “Hawaii Together” program on ThinkTech Hawaii.

Also on the program was Malia Hill, the institute’s policy director, who wrote the January 2021 report “Lockdowns Versus Liberty: How Hawaii’s Experience in 2020-21 Demonstrates the Need to Revise the State’s Emergency Powers.”

Hill’s comprehensive legal analysis proposed many of the reforms that were included in the widely supported reform bill, HB103, which looked certain to succeed in the 2021 legislative session but died in conference committee at the very last minute.

Said Newsham: “I think many of us were optimistic about HB103 passing and establishing some of the checks to the governor’s executive emergency powers that we were looking for. It seemed to be making its way steadily through the legislative process, but it was killed at the 11th hour without much of an explanation as to what exactly happened. We decided to look into that, [and] I’ll certainly go into more detail later on. But I guess the reason the bill never made it through, I think, can be boiled down to disagreement over the ease with which the governor can extend an emergency — as well as, I think, a degree of political shenanigans, you could say.”

Said Hill: “I definitely hope that it (HB103) is something that comes back. There’s a lot of ways to address the issue, but if we’ve learned anything, it’s that the emergency management statute, as it is right now, is just not capable of dealing with a health emergency.”

Watch the entire interview below. A full transcript is provided.

8-2-21 Melissa Newsham and Malia Blom Hillon “Hawaii Together”

Keli’i Akina: Hello. Welcome together to “Hawaii Together” on the ThinkTech Hawaii Broadcast Network. I’m Keli’i Akina, president of the Grassroot Institute, and just delighted to be with you today and a couple of wonderful guests. 

It’s August of 2021, and we are still in the coronavirus pandemic era. Who would have thought that it would last this long? 

One of the major problems that we’ve seen is how to balance the role of government in taking care of public health against the preservation of our personal liberties and rights. As the 2021 legislative session here in Hawaii came to a close, there were many Hawaii residents who were disappointed because the Legislature failed to approve a bill that would have placed limits on the governor’s emergency powers.

We saw during the year of pandemic management that there were emergency decrees that went on perpetually, although they were limited in terms of their expiration date, so to speak, they were renewed over and over. That left us wondering who’s really in charge? Are the people or a small number of individuals, perhaps just the governor? Today we’re going to talk to Melissa Newsham, a researcher at the Grassroot Institute of Hawaii. She’s going to share the results of her research into why a certain bill, the bill we’re talking about, failed at the last minute to make it to the governor’s desk although there was tremendous widespread support from individuals and public interest groups for the bill, and what that means in terms of our civil liberties and our accountable government.

I’m also pleased to have with us today Malia Blom Hill, the Institute’s policy director. She’s going to discuss how that bill would have limited the unchecked power of the governor. Let’s go straight to our guests. First of all, Melissa, I know you’ve been traveling. You just got off the plane from Japan. Thank you so much for joining us today. We’re glad to have you on the Grassroot Institute team.

Melissa Newsham: Thank you for having me.

Akina: Malia, a regular guest here on ThinkTech Hawaii’s “Hawaii Together.” Thanks for all the work that you do all the way from the East Coast as an expatriate of Hawaii on behalf of the Grassroot Institute, managing our policy directions.

Malia Blom Hill: Thank you. It’s a pleasure to be here as always.

Akina: Going back to Melissa, tell us a little bit about your research background. I know you’re at Case Western right now. In terms of the research work you do for your homeland, Hawaii, what have you been writing about at the Grassroot Institute?

Newsham: Sure. Over the last two years or so, I’ve had the pleasure of working at the Grassroot Institute, working on some government accountability as well as some tourism and travel-related topics like the Airport Corporation, for example.

Akina: Why is it important for us to look at different models of doing things in Hawaii? For example, look at a little more privatization in terms of the management of our airport operations?

Newsham: I think, from a personal level, I’m just one among many young people who really love Hawaii but are concerned with the direction, and just the “same old” that’s been happening. It’s been exciting to work with an organization like the Grassroot Institute that’s really pushing to change that by working together across the aisle.

Akina: Melissa, I asked you to join us today because you’ve written a paper for us that we’ve published called “Why reform of Hawaii’s emergency powers law failed,” and that’s available on our website at grassrootinstitute.org. Could you give us a quick summary of that piece? What were you writing about? Why did you write it? Give us a little glimpse into that paper.

Newsham: Sure. I think many of us were optimistic about HB103 passing and establishing some of the checks to the governor’s executive emergency powers that we were looking for. It seemed to be making its way steadily through the legislative process, but it was killed at the 11th hour without much of an explanation as to what exactly happened. We decided to look into that. I’ll certainly go into more detail later on, but I guess the reason why the bill never made it through, I think, can be boiled down to disagreement over the ease with which the governor can extend an emergency, as well as, I think, a degree of political shenanigans, you could say.

Akina: What were really the root causes, you feel, that the bill failed? There was a tremendous sentiment in the public that, although we recognize the role of government in managing the health crisis, we’re concerned about accountability, we’re concerned about the continued extension of the emergency powers decrees, decree after decree. There was a lot of sentiment even in the Legislature itself for passing that bill. Why do you think it failed? The title of your papers is “Why reform of Hawaii’s emergency powers law failed.”

Newsham: Sure. Well, I think it can be explained by, I think, a disagreement between the House and the Senate over how easy and how easily the governor can extend or renew. Some people in the House felt that the bill, as it was, was a bit too strict in terms of limiting, in terms of the governor’s ability to do that, and these issues were never able to be resolved, and so the bill was informally killed in the end.

Akina: Well, there certainly were political reasons at play. Malia, you’ve been watching almost all the legislation in the House and the Senate that has to deal with civil liberties and rights, and so forth. You certainly watched HB103. What was that bill about? What was it trying to accomplish? Maybe that can give us deeper insight into how it was received and why it failed.

Blom Hill: Well, what HB103 was trying to do was reform the emergency management law. Basically, the Hawaii statute that gives the governor the ability to pass all the executive orders, declare a state of emergency, the entire situation under which the people of Hawaii have been living for the last year-plus, is governed by this state of emergency. That’s all defined by the Emergency Management Act. When it was enacted, I think it was enacted for the idea of a hurricane, a temporary emergency. You can tell that it was never really intended to deal with something that would go on for months and months and months. It has an automatic termination of 60 days.

When that termination date came and passed, the governor just extended the emergency, extended the emergency, extended the emergency, things that are very much just like legislation, which is not the executives’ role, being passed: serious changes to when things are due, the eviction moratorium, pretty significant changes in our law that happen through this executive order process. The powers during an emergency are really significant, which is why we say, it wasn’t really intended to go for so long. 

This bill was an attempt to correct that. You could argue that perhaps it was trying to correct the problem that we have, and yet also trying to still address what it was originally intended for. That might be where the problem was, because it attempted to put limits on the governor’s ability to extend and extend and extend emergency. It created a way for the Legislature to stop a state of emergency. It required justification for the suspension of laws. It emphasized the importance of any executive actions, executive orders, having to align with Hawaii Constitution, a lot of these things that people were talking about during this state of emergency. How do we protect people’s rights? How do we give people a voice? It  attempted to address those by putting in a check on how long the state of emergency can last and trying to force justification for suspending laws, and put limits on how long a law could be suspended for.

Akina: Melissa, as you were watching the bill, you noted that there were many groups in the public that came to its defense, as well as many legislators. Tell us a little bit about that.

Newsham: Sure. Well, the Grassroot Institute certainly supported the bill as well as Common Cause Hawaii, or the Civil Beat Law Center, and even the Hawaii Government Employees Association. I think it’s pretty rare to see these group of people all agree on the same bill, so I think that just speaks to the importance of what the bill was trying to do. For the lawmakers, it did appear that most people supported it. It had been passed, I think, unanimously in the House and approved 23 to 2 in the Senate. At least on the surface, it seemed like this was something that was being supported by lawmakers.

Akina: I think that the fact that it got so much support, public support from lawmakers as well as many organizations and groups, and then yet failed at the last minute, shows us that this is an issue that may come back. I think that the tension between the government’s role in taking care of us, and the government’s duty to give us our liberties is one that continues. What do you see, Malia?

Blom Hill: I definitely hope that it is something that comes back. There’s a lot of ways to address the issue, but if we’ve learned anything, it’s that the emergency management statute, as it is right now, is just not capable of dealing with a health emergency. Maybe the answer is to amend this, a resurrection of HB103. Maybe the answer is to reform that loss so that health emergencies are dealt with differently so that you can take that out of the same rubric. Maybe that would address the problems to some degree. But it’s definitely crying out for some response.

Akina: Well, where does Hawaii stand? Maybe, Malia, you’ve looked at this across the nation, in terms of where we are on this matter compared to other states. Are there reforms being instituted around the country?

Blom Hill: There have been other states that took much more aggressive action. Some of them, early on. There were some states where the Legislature just stepped in and basically stopped the state of emergency. One of the odd things is that the reforms that are advocated for, that we advocated for, that are in HB103, they do exist in dozens of states, the ability to end a state of emergency by concurrent resolution of the Legislature. That’s something that is not uncommon. There were places where that happened. There were places where the Legislature challenged the way that the executive orders happened themselves. There were states where there were lawsuits.

Hawaii, we’re not alone in having an emergency management act like this, but there are a lot of states that already have it there to address the problem differently, to have these reforms that we’re pushing for.

Akina: One of the things that we noticed early on with this bill and this very issue, the state’s use of emergency management powers and, in particular, the governor’s use of emergency management powers, was a difficulty in getting information. It didn’t seem to be a topic that many officials were really very open to talking about. I’m wondering what kind of reception, Melissa, you received as you reached out and tried to talk to people about this.

Newsham: Sure. Well, I think one of the things that I was surprised by was just how difficult it was to get those answers from the people who supposedly supported it. I reached out to the office of the representative who introduced the bill, and [I never heard] back. Even when you get the answers, it can be a bit vague, and it can be difficult to put the pieces together. I was able to speak to Sen. Donna Mercado Kim, who actually opposed the bill. She was very candid in expressing her reasons as to why she couldn’t support it. But it was a different story for those who at least voted in support for the bill.

Akina: Malia, is the way HB103 died strange or par for the course?

Blom Hill: If I may be permitted to gripe a little bit, it is strange. But one of the problems, I will say, in having a heavily one-party Legislature is that the debate doesn’t happen as publicly as you might have somewhere where there’s a lot more interaction and discussion and debate through the process. A bill like HB103, and there’s a lot of them, they just seem like they just speed through. They’re voted right through and you think, “OK, that’s going to be fine.” When the rug gets pulled out from under them, you’re left wondering, “Was it ever intended for it to pass? Was there a lot of debate behind closed doors that we don’t know about?” You don’t really get your answers unless you have someone like Melissa to go dig into it.

So this was strange. It wasn’t completely unheard of, but most of the time when a bill just speeds through every committee like that, with so much support, you just expect it to — when we were watching it, we thought the problem was going to come from the governor. We expected [that] maybe it’ll get vetoed, and we’ll have to advocate for a veto override, but we didn’t think it would just crash and burn as it came out of conference committee. That is strange.

Akina: Well, we’ll come back and talk a little bit more about this subject and broaden it a bit, after we take a short break. Thank you so much, both of you for being here with us. I’m Keli’i Akina on ThinkTech Hawaii’s, “Hawaii Together.” After a short break, we’ll be right back with you. Don’t go away.

[INTERMISSION]

Akina: Well, thanks for staying around. We’re on “Hawaii Together” on the ThinkTech Hawaii Broadcast Network. I’ve got Melissa Newsham with us and Malia Blom Hill, who are researchers at the Grassroot Institute of Hawaii. 

Melissa, as we’ve been talking about the HB103 bill that didn’t pass, although we wanted it to pass. We would have loved to have seen the reforms it could bring to the Emergency Powers Act. You saw quite a bit that piqued your interest and your curiosity as to how bills do pass and do fail and so forth, and there were some things that you actually wanted to make note of. What were they?

Newsham: Sure. Well, as Malia mentioned, it’s not entirely unheard of for these bills that have widespread support to die at the last minute. I think one of the problems was that the explanations that were given by the Legislature were insufficient. The Speaker of the House expressed that the reason why the bill failed was because, after the bill came out of conference committee, they just realized that the bill didn’t include a pathway for the governor to extend or renew an emergency. I spoke to Rep. Linda Ichiyama, who was one of the co-chairs of the conference committee on the House side as well, and she echoed that similar sentiment about the need for the governor to be able to extend or renew an emergency and the final version of the bill lacking that.

But the interesting part is that if you look at the earlier versions of the bill before conference committee, they actually all included a pathway for the governor to extend an emergency. It required that he requests the Legislature at least 12 days in advance to extend the emergency, and then the Legislature then had the ability to approve the request via concurrent resolution, or deny it. According to Sen. Sharon Moriwaki, whom I spoke to, who is one of the chairs of the conference committee as well, she expressed that it was actually the House side who had a problem with this provision requiring the 12 days advance notice to request an extension. The House just felt that this was too much to ask for the governor, and so they felt the need to delete it, which led to some disagreements that were not able to be resolved.

Akina: Ultimately, we had, coming out of conference committee — you can correct me if I’m wrong — but what I hear you say is, it was a bill that no longer had a pathway for the governor to extend the emergency. Is that right?

Newsham: Right.

Akina: Why do you think that was, beyond some of the political machinations that surrounded that? What rationale would there be for that?

Newsham: Well, based on what I was told, the pathway that did exist required, again, the 12 days advance notice and a concurrent resolution to approve it, and perhaps some people thought that that was just too strict and too much to ask. It was just removed at the last minute, which led to — despite the fact that these concerns were not raised prior to entering conference committee. I think that disagreement probably led to the bill failing.

Akina: Well, let’s pull out a little bit from this one bill and this one issue, and look overall at the landscape in terms of the conflict between management of public health crisis and our liberties. Malia, you put together for us an excellent white paper called “Lockdowns Versus Liberty.” That’s available at grassrootinstitute.org. Could you summarize what you were trying to say in that paper?

Blom Hill: That came out during the heart of the emergency period, before things started opening up again. We started on it in part because we had a lot of people asking “Why can’t we just sue? We’ve had these really heavy lockdowns. Why can’t we just sue and get our rights back?” We wanted to explain why that’s not possible, how a court looks at these issues. Then we wanted to, having done that, say, “OK, but there is a problem here in the way that the emergency is conducted — the fact that it can go on indefinitely, the fact that we are missing some guarantees, our constitutional rights.” 

So how can we improve this? How can we make our emergency statute better? How can we make it so that we don’t have things happen this way again, that in the future, people have more of a voice in the conduct of an emergency, especially a health emergency? So we looked at what reforms we would suggest when it came to addressing the failures that we had witnessed over the course of the COVID emergency. We especially thought about how we can respect the need to protect public health and public safety, because that is still an issue, and yet also restore the balance of powers. Over the last year, the governor has become sort of a super legislator. That’s not how our system was set up. The people really have no true voice.

So the most important thing is getting the people’s voice back into the system through restoring the balance of power and creating a legislative check on the governor’s or the mayors’, as the case may be, powers during an emergency. The idea of being able to end an emergency via concurrent resolution, which was in HB103, was a big part of that. Yes, the need of the governor to basically get permission, so to speak, to extend an emergency. 

By the way, as a gripe, when HB103 went through the Legislature, for almost all of it, there was a provision that just allowed for automatic renewal of an emergency if the governor proposed it and the Legislature failed to stop it. To hear the lack of that, that it had it for almost the entirety of the legislative session and only lost it at the very end — it was the Senate that added — Anyway, the legislative process is a frustrating and interesting thing. Anyway, we wanted to basically restore the balance of powers by having the Legislature have a check, because that’s how the people get their voice in. There’s a lot more responsiveness that way.

We wanted to make sure that that was there. We wanted to create more accountability. We talked a lot about more transparency guarantees. The governor, very famously, suspended transparency laws, sunshine and transparency laws, at the beginning of the emergency. While he did restore them to some degree, we’re still not all the way back.

There’s still a lot of foot-dragging, there’s still a lot of excuse-making. They don’t quite have to hit the same transparency benchmarks that they had to before the pandemic. We wanted to see some guarantee that sunshine laws and transparency laws will be respected. We wanted a justification for the suspension of laws, which did make it into HB103. We wanted to see a requirement that any emergency order was narrowly tailored to address the emergency, because some things could be very broad, and that’s when you start to wade into issues of rights. 

These [were] basic principles that we put forth in terms of how to reform the emergency management law with respect to constitutional principles of balance of power, transparency and accountability.

Akina: There is often a rush to the courtroom in responding to infringements upon civil liberties. Yet, in your paper, you would make reference to the fact that you did take a look around at the scene nationally at many cases that were going to court, and found that that is not a very fast solution, nor a pragmatic one in the short run, that in the long run, what we really have to do is change the laws. Do you want to comment on that?

Blom Hill: Yes. We rely very heavily on the idea that the courts will defend our rights, and they’re there as a safeguard, but the way that courts deal with emergencies makes it a very slow process and not necessarily successful. It’s fundamentally a legislative problem. The way that the emergency is conducted is according to a statute. So a legislative problem has a legislative solution. 

The court is remedial. After your rights have been restricted, then you go to the court, but ideally, you have a situation set up where that never happens to begin with, and that requires reforming the law. That’s why and the reasons why our recommendation was that we need to look at the emergency management statute, the emergency powers law, not just hope that the courts will sweep in and help us.

The court decisions we’ve seen don’t really show us that, and even in the best-case scenario, we’re just going into litigating for months and months and months, or even years.

Akina: Very good. Malia, thank you very much. I want to give a closing thought over to Melissa. What would you like to see happen in this next legislative session, or next legislative season, with respect to the emergency powers bill or act?

Newsham: I think many of us have just been frustrated over the last year and a half or so on the consequences of the governor’s unchecked emergency powers. It’s important to remember that the Legislature has the ability and the responsibility to reign it in. So far, they’ve let us down, but again, like the silver lining is that the bill in the upcoming legislative session, our proposals can be refined to better reflect what it is that we’re looking for. It should really be one of the priorities for the legislators. The legislators who had the chance to speak with all indicated that they were willing to revisit this issue. Hopefully, conversations like these, and just providing some clarity on what exactly happened this past legislative session, can pave the path for resolving some of the issues that led to the bill failing.

Akina: Thank you very much. Thanks to both of you. My guests today, Melissa Newsham and Malia Blom Hill of the Grassroot Institute of Hawaii, have given us some wonderful insights, things to think about as we try to balance the role of government and managing public health, and also defending our civil liberties. There’s a lot of work ahead. I am Keli’i Akina on ThinkTech Hawaii’s “Hawaii Together.” Until next time, aloha.

 

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