Emergency powers reform bill could be stronger, institute says

HB1585 needs greater clarity about the role of the Legislature and stronger statements about protecting transparency and individual rights

HONOLULU, Jan. 31, 2022 >> A legislative proposal to reform the state’s emergency powers law, HB1585, would be a good start toward restoring Hawaii’s constitutional balance of powers, but it could be much stronger, according to testimony submitted by the Grassroot Institute of Hawaii.

The bill is to be heard Tuesday, Feb. 1, by the House Committee on Pandemic & Disaster Preparedness.

In the institute’s testimony on the bill, Institute Executive Vice President Joe Kent stated that state law currently 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.

Joe Kent

Kent said HB1585, if enacted, “would amend the state’s emergency-management statute to clarify that the powers granted for emergency purposes should not be inconsistent with the Hawaii Constitution, require justification for the suspension of laws and place parameters on such suspensions, and allow the Legislature to terminate an emergency, in part or in whole, by a ⅔ (two-thirds) vote.”

That, he said, would be “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.”

As for how the bill could be improved, Kent suggested:

>> Adding a provision stating that supplementary proclamations extending an emergency must be approved by the Legislature via concurrent resolution.

>> Adding a provision that clarifies how the Legislature could act when it’s not in regular session, since currently the bill does not provide such an avenue.

“Given the need to create a streamlined approval process in an emergency,” he said, “the bill could include a mechanism whereby the Legislature could approve or deny extension through the use of remote technology.”

In addition, Kent said, “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.”

To see read the Grassroot Institute’s full testimony, go here.

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