Photo by Charley Myers
The following is testimony submitted Jan. 31, 2022, by the Grassroot Institute of Hawaii for consideration by the Hawaii House Committee on Pandemic & Disaster Preparedness.
Feb. 1, 2022
Conference Room 309
To: House Committee on Pandemic & Disaster Preparedness
Rep. Linda Ichiyama, Chair
Rep. Stacelynn K.M. Eli, Vice Chair
From: Grassroot Institute of Hawaii
Joe Kent, Executive Vice President
RE: HB1585 — RELATING TO EMERGENCY MANAGEMENT
Dear Chair and Committee Members:
The Grassroot Institute of Hawaii would like to offer its comments on HB1585, which 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.
If enacted, this bill will 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 restoring legislative authority via the ability to end an emergency and the limitations on suspension of laws, this bill would take a positive step toward protecting the balance of powers and the public trust. Moreover, the clarification that the exercise of emergency powers must be consistent with the state Constitution is a welcome and necessary addition.
However, we suggest that the committee make a few additional changes in order to accomplish the intent of the bill.
>> The bill addresses the problem of the statute’s vague “automatic-termination” clause by specifying that the governor may extend the emergency by supplementary proclamation. While this does clarify the issue, it does little to discourage extended/perpetual emergencies. We suggest adding a provision stating that supplementary proclamations extending an emergency must be approved by the Legislature via concurrent resolution.
>> While the Legislature can end the emergency while in session, the bill does not provide an avenue for the Legislature to act while not in session. This could be addressed via a requirement that the governor obtain legislative approval for before extending an emergency by supplemental proclamation. Given the need to create a streamlined approval process in an emergency, the bill could include a mechanism whereby the Legislature could approve or deny extension through the use of remote technology.
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-termination 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.
Finally, we ask that the committee consider how to better protect civil liberties during an emergency.
In the Grassroot Institute 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 pandemic.
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:
>> Ensure that restrictions and regulations are narrowly tailored, with a clear connection between the restriction and the public health aim.
>> 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.
>> Strive for more transparency in decision-making and directives, including protections for existing sunshine and open-records laws.
This bill makes several much-needed changes to the existing emergency-management statute. 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.
Throughout the COVID-19 emergency, we have had the opportunity to learn more 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.
Executive Vice President
Grassroot Institute of Hawaii