‘What we really want is a return to balance of powers’

It has been almost two years since Hawaii Gov. David Ige declared a state of emergency because of COVID-19, and so far there is no end in sight.

On this week’s episode of “Hawaii Together” on ThinkTech Hawaii, Grassroot Institute of Hawaii Policy Director Malia Hill discussed with host Keli’i Akina how the governor’s extended emergency powers have upset the state’s constitutional balance of powers, and which pending bills in the Legislature could help rectify the situation.

What we really want is a return to balance of powers, said Hill. “That’s the real goal here. It’s not so much getting these mechanisms to stop the governor as just ending the ambiguity of this 60-day time limit and finding a way to make sure that people have a voice in the way that an emergency is managed via their elected representatives.”

Hill, who wrote the institute’s 2021 policy brief “Lockdowns Versus Liberty,” said there are a handful of bills under consideration at the 2022 Legislature that address the issue, but probably the best one is HB1585, which would allow the Legislature to end an emergency either in part or in full by a two-thirds vote, clarify that emergency powers have to be consistent with the state Constitution and require a justification for the suspension of any law.

Two bills in the governor’s legislative package, HB2121 and SB3089, also address the issue, but not surprisingly, perhaps, neither would do much to limit the governor’s power during an emergency.

To see the entire half-hour program, click on the video below. A complete transcript is provided.

1-31-22 Malia Blom Hill with Keli‘i Akina on “Hawaii Together”

Keli’i Akina: Aloha and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcast network. I’m Keli’i Akina, your host and president of the Grassroot Institute. 

If you have been aware of anything at all, you know that we’ve been in a state of emergency for the last two years. As of March 4th, it will be two years since the governor first pronounced the state of emergency to deal with the COVID situation. That’s quite a long time. Originally, it was supposed to be a 60-day emergency period. 

We’re taking a look at this in-depth today. Our topic is “Ending Hawaii’s state of emergency.” 

As you know, Hawaii legislators have introduced several bills that would limit the governor’s potentially endless emergency powers. According to Malia Hill, the Grassroot Institute of Hawaii Policy Director, the goal is to bring a much-needed end to the state’s economic and social lockdowns and restore the government’s constitutional checks and balances. 

We’re going to talk with Malia today. You’ve seen her on the program before, and I want to welcome Malia. Aloha all the way from the East Coast, near Washington, D.C., Malia Hill. Welcome to the program, Malia.

Malia Blom Hill: Hi, Keli’i. It’s so nice to be back.

Akina: Well, you’ve been an important part of the Grassroot Institute for quite a while. When you lived in Hawaii, you worked on legislative staff and became part of the Institute, then when you moved away, you stayed on board, virtually at least, as our representative up on the East Coast in D.C. What keeps you with the Grassroot Institute?

Hill: Well, my body may be here in Washington, D.C., and very chilly, but my heart is still in Hawaii. I have family in Hawaii. Like so many people, I had to leave, but those of us who leave, we always think, “One day I want to come back.” One day I want to come back and I want to, while I’m away, contribute to making Hawaii better, happier, more prosperous.

Akina: Well, thanks to the technology of distance communication, you’re here with us constantly on a daily basis in the islands and we appreciate your policy work. You have been published here in local media and you continue to do significant work that helps improve the quality of life of many people in the state. 

Now, let’s get to the topic today. Gov. [David] Ige just extended the emergency again through his latest proclamation which is going to terminate on March 25th. At this point, it seems safe to say that we’re in somewhat of an indefinite state of emergency. There are a lot of questions about the law that allows the governor to make emergency proclamations. What was it intended for? Explain to us a little bit about that law.

Hill: Yes. Because of the way that the COVID emergency has gone, we are looking at the statute in an entirely different way. 

Originally, we’re all familiar with the emergency management statute, the intention, as it’s right there in the name; is to give the governor powers to act quickly and to respond to an emergency. 

You think of it as something that you need to respond to, obviously, in times of war or military actions, but also hurricanes, natural disasters. We usually see it employed with things like hurricanes and flooding, that sort of thing.

In the last two years over the course of the COVID emergency, we’ve seen that this law was not really made with the intention of dealing with a problem that is going to go on indefinitely. 

The emergency statute, as it is, has an automatic termination of 60 days and as we’ve noticed, we’re way past 60 days. What has happened is that the governor just keeps extending the emergency and taking advantage of the powers that he has by virtue of the statute to basically somewhat usurp the legislative function.

We’ve actually gotten to the point where the governor has been extending this emergency indefinitely, contrary to the clear intent of the statute, and we’ve even gotten to the situation where some of the changes that we’ve been living under, under this COVID emergency — things like changes in licensing restrictions for doctors and nurses — are because of this. People almost want that part to continue, but it’s all tied up in these emergency proclamations. Fundamentally, this is just not the good, democratic way to run a state government.

Akina: Well, you know it’s kind of ironic that although it’s not ideal to be in a state of emergency, that has loosened up the government with regards to some regulations, as you mentioned, such as telemedicine and so forth. 

Here we are needing to bring medical personnel into Hawaii to deal with the emergency, but we have to amend the law to allow them to be licensed — sort of what we’ve been advocating for all the time, reciprocal licensing. That is really an irony. I’m glad you pointed that out.

Now, let me ask you this: Why therefore is it a problem if the governor keeps extending the emergency? Now that the most restrictive orders have been lifted, maybe we need the extended proclamations to deal with these, like travel. Or am I being too glib about that?

Hill: It’s actually an interesting question because it was no difficulty talking about this at the beginning of the pandemic when people were starting to get frustrated at the lockdown. But now that the worst of the lockdown has been lifted, it isn’t impacting people’s lives in the same way. The question is, what is really the problem here? 

To some extent, I’m afraid I’m going to have to be philosophical and say that the extended emergency upsets the balance of power. It prevents the people from having a voice in the conduct of the emergency and those democratic principles still matter.

The emergency, especially as it is now, the law basically allows the governor to exercise legislative powers like suspending laws and creating new regulations, for as long as the emergency exists. 

Now, sometimes that’s good. We like what he’s done, but that doesn’t make the function of what he’s done a good thing. It’s still problematic that he’s acting in a legislative capacity. This is understandable for a few weeks — that’s what the statute envisions — but two years, that’s a totally different ballgame.

If the governor has introduced something that we say, “Wow, that really worked. What a great idea,” then the Legislature can and should just act to make that part of the law. Yes, let’s make that permanent. We could go on and on, probably this is for a different program, about the changes that would be good to make permanent, that came from the emergency orders. That still doesn’t get away from the fact that the Legislature shouldn’t be shirking its responsibility by leaving these kinds of things to the governor.

Akina: Sure. Well, Malia, you never have to apologize to me for being philosophical. [laughter]

Akina: There are times when we do have to be popular and take the popular will of the people into consideration, and so we do look to see whether the people want the lockdowns or not. 

At times, we have to be pragmatic and see whether there are good things that are coming out of the lockdowns in and of themselves, but you raise a very important question for democracy, and that is, “Are we constitutional?”

We have something, as you pointed out, called the balance of powers. The fact that we have one individual capable of declaring and maintaining almost perpetually a state of emergency, seems to work against that balance of powers. It mitigates not only the role or the powers that the Legislature has, and those powers ostensibly represent the people, but it also mitigates the responsibility that the Legislature takes or needs to take for what goes on. 

I think more people do need to talk about what you’re raising, and that is the damage that is done to the balance of powers, which is an essential constitutional part of the way we do government in the United States.

Now, back in the 2021 legislative session, there were already attempts to curb the emergency powers. In fact, there was a bill that we were very disappointed ultimately did not pass. Do you want to tell us a little bit about that?

Hill: Yes, that was HB103, which basically was trying to create a mechanism where the governor would need legislative approval to extend the emergency past the 60-day time limit in the statute. 

As it is right now, the statute just says an emergency terminates at 60 days, and then it doesn’t specify what happens after that. The governor has, during the COVID emergency, just extended and extended and extended, and there’s nothing that says he can do that, but there’s nothing that says he cannot. And so far, it has been allowed to continue.

HB103 wanted to put a stop to that, and it did move through the Legislature and was supported by a lot of different public interest groups. Obviously, the Grassroot Institute — also groups like Common Cause and even the Hawaii Government Employees Association — were behind it, but the bill failed in conference committee for somewhat mysterious reasons. 

We’ve looked into it and we’ve heard that maybe it failed because of disagreement over how it was exactly that the governor had to get the Legislature’s approvals for the extension of the emergency. We know that the governor didn’t really want that bill to pass, so there is that. That is a consideration as well, the way it failed.

Akina: Right. I suppose it’s the case when we get behind closed doors, we don’t know really what goes on in those conference committees, but whatever reasoning took place that led to the demise of HB103, let’s look ahead to this legislative session. 

Are there any bills on the docket that would address the problem of indefinite emergencies and some of the other issues related to it, such as emergency management … well, within the emergency management statute?

Hill: Well, there are a few bills that speak specifically to our concerns. Most significant at the moment is HB1585 because it’s being heard tomorrow [Tuesday, Feb.1], in the House Committee on Pandemic and Disaster Preparedness. This bill lets the Legislature end an emergency either in part or in full — which is an interesting twist — by a two-thirds vote. 

It also clarifies that emergency powers have to be consistent with the [state] Constitution and it creates parameters for the suspension of laws, including the requirement that there be a justification when a law is suspended, which is pretty important for those who feel like some of the laws have just sort of been suspended for convenience sake.

Akina: I understand that you’re working with a team on some testimony for that bill in particular. One of the questions that arises is: What value is there in the Legislature being able to overrule even just a portion of the decree of the governor?

Hill: That’s actually a very interesting thing. Yes, we were going to submit testimony on this bill, which we think for the large part is a really good bill. It takes some important steps to curb this indefinite emergency thing and put a legislative check on the governor’s powers. 

The reason that you might want the Legislature to end an emergency in part is because phasing out some things, when you end the emergency, everything that was in the proclamation, in theory, would just end, including some of these things that we might like, or that might require. …

Let’s say, for example, the Legislature wanted to end the emergency of the whole but there were elements of the safe travel system or vaccine elements requirements, and this would let them preserve portions of that emergency until they could address that. Because all of a sudden, let’s just say one day you have the safe travels in place and then the next day you don’t, it creates a bit of uncertainty and problem. So you can see why having it ended partly is useful.

The other reason is that there’s the possibility that certain funds, especially federal funds, would be tied to the fact that you were in a state of emergency, and so you wouldn’t want to completely end the emergency in order to take advantage of that. There are reasons why we wouldn’t necessarily have an issue partially ending the emergency and partially keeping it in place. That’s not automatically a problem.

For the most part, this is a good bill. I’d like to see some stronger language in the way that the governor would need to get approval from the Legislature to extend an emergency because, as it’s written, it does let the governor extend an existing emergency.

I’d like to see a few more protections in place for transparency and for civil rights, especially property rights, but it’s a really good step in the right direction.

Akina: Well, that’s good to hear. You’re talking about HB1585.

Hill: Yes.

Akina: I agree with you. I think that the fact that it’s not an all-or-nothing kind of bill, the fact that it’s not a throw-the-baby-out-with-the-bathwater bill, but it’s a little more surgical than that makes it feasible. It makes it more practical and realistic in terms of trying to manage what’s going on in the public. 

More than that, it may allow us to retain some of the emergency features that have actually been good, that perhaps in the long run, such as telemedicine and reciprocal licensing for medical personnel from other states, these things, which in the long run may be good for Hawaii, we can retain them a bit.

We’re going to take a break now, but when we come back, I’d like to hear a little bit more about what’s going on at the Legislature in terms of other bills and how effective you think they may be. 

I’m with Malia Hill now, policy director of the Grassroot Institute. We’re going to take a short break and then she’ll be right back talking about what the Legislature is doing in terms of altering the perpetual states of emergency that one official, the governor, is able to enact. 

I’m Keli’i Akina on the ThinkTech Hawaii broadcast network. Don’t go away, we’ll be right back.


Akina: Aloha, everyone. Welcome back. Thanks for sticking around. You’re watching “Hawaii Together”on the ThinkTech Hawaii broadcast network. I’m Keli’i Akina with Malia Hill, the policy director of the Grassroot Institute. 

Malia, you were telling us about an important bill that would potentially curb the emergency powers of the governor, giving the Legislature more power and responsibility, thus restoring to some extent the balance of powers, an important feature in our constitutional form of government. There are some other bills that are worth noting as well. Do you want to comment on some of them?

Hill: Yes. HB1585 is the only one that is up for a hearing so far, but there are a few other bills that have been introduced that haven’t yet been heard. There’s HB1416, which is essentially a replica of last year’s bill. It’s very similar to the one that’s being heard already in that it allows for termination of an emergency by a legislative resolution, and it has similar provisions about the suspension of laws and the emergency powers having to be exercised in accordance with the Constitution.

There’s a Senate bill, SB3285. That’s the Senate version of the one that’s being heard in the House. Then there’s a pair of bills, HB2121 and SB3089, that are part of the Governor’s package. 

Akina: Well, that’s quite interesting. Let’s take a look at that a bit because I find some of the approach of the governor quite telling in terms of his posture toward what the Legislature is trying to do in terms of reducing the powers of the governor.

Hill: Yes, it is interesting. It does have some similar similarities to the other bills in that it does have language about constitutionality, all emergency powers have to be in accordance with the state Constitution. 

It has some similar language about suspension of laws having to be justified and having to end as soon as they can. The way that it deals with that real big question, the 60-day termination clause, is that it codifies that the governor can extend emergencies through supplemental proclamations, which is effectively what he has been doing this whole time. 

It just puts it into law that what he has been doing this whole time is completely OK and legal, which raises some interesting questions. It’s almost like an acknowledgment that, “Hey, maybe this wasn’t 100% OK and legal up until now, but now for sure, I can 100% do that.”

Akina: Very interesting.

Hill: I think it probably goes without saying but the governor’s package bill does not have a provision that would let the Legislature end an emergency by any kind of vote.

Akina: We’ll take a look at the battle over that. Now, there’s also HB1496, which deals with gatherings in public.

Hill: There are so many bills introduced and a lot of them touch on emergencies in different ways. There is one, HB1496, that basically allows the restrictions on public congregations in a state of emergency. This has been a real tripping point of debate for people, especially regarding restaurants and bars and retail food establishments. That’s specifically what this bill is about, allowing them to limit service to vaccinated persons or patrons with a negative test for a contagious disease. 

This bill also says the restriction can last no more than 30 days and that it requires legislative approval in either regular or special session, if you’re going to extend it. It’s a real mixed bag as bills go and interesting to see it as one of the ones that was introduced this year.

Akina: Well, take a look at all these bills together: Would any of them really have an impact in terms of stopping the governor from continuing to extend his emergency orders in the fashion we’ve seen over the last two years?

Hill: It’s interesting to put it that way because while we’ve been talking about these bills and the emergency powers and the emergency management statute in terms of stopping the governor, what we really really want is a return to balance of powers. That’s the real goal here. It’s not so much getting these mechanisms to stop the governor as just ending the ambiguity of this 60-day time limit and finding a way to make sure that people have a voice in the way that an emergency is managed via their elected representatives.

That’s important to remember because several of these bills do allow the Legislature to end an emergency via resolution or a vote, et cetera. Hypothetically, that makes it possible to stop these indefinite emergencies, exactly like what we were talking about. But it’s really, really important to recognize that it’s a vote. It isn’t that it would stop the governor, it’s that it would make it possible for the Legislature to stop the governor, assuming that the Legislature does vote to stop the governor.

It’s a subtle difference but it’s important because just because you pass this bill, let’s say, if you really, really want an end to the emergency, the bill passes, it doesn’t mean that that will end the emergency. The Legislature could choose not to act, [or] the Legislature could choose to endorse the continued emergency proclamations.

Akina: I think what you’ve said underscores the importance of citizens getting involved in the voting process. We have every legislator in the House of Representatives, as well as the Senate, up for election this coming election, 2022, and if we really want to see a Legislature that is empowered to stand against the executive branch when necessary in order to balance powers, we also need to see that we’ve got the right people in there to vote the way that they should vote. So this is my commercial plug.

Hill: Exactly, though there’s no substitute for civic engagement. We talk about the Legislature giving up responsibility and handing it over to the governor. Well, the people cannot do the same thing when it comes to the Legislature. Just because the Legislature’s there, it doesn’t give you an excuse to just check out and not act and not be engaged because the Legislature will only act if people are engaged.

Akina: Right. Now, at the same time, with all of this concern over the balance of powers, we recognize that there is a role for the executive. We do have natural disasters from time to time. There are other emergencies, catastrophic in nature, that occur and we do definitely want to have someone in a position of power capable of acting on behalf of all the people. 

Now, do these restrictions on the governor’s emergency powers, representing some of the legislation going forward, prevent the governor from being able to act when he needs to respond to natural disasters or catastrophic emergencies?

Hill: The short answer is no. This is actually one of the things that does make it difficult to amend the law is that, in all fairness to the Legislature, they are trying to walk a line where they preserve the ability to respond to emergencies but take advantage of what we’ve learned through the pandemic to prevent the indefinite exercise of executive power without a legislative check. These changes are very specific, really specifically tailored to address the shortcomings in the existing law.

It’s very obvious that when this law was written, it just was never intended to cover an extended health emergency. It’s really designed to deal with these more immediate natural disasters, catastrophic emergencies that you’re talking about, and that won’t go away.

Akina: It’s important to recognize we’re really not at a place where we’re able to construct the legal system that surrounds emergencies from scratch. We’re doing this on the fly as a society. What we’re trying to do is correct a flawed emergency powers act while we’re actually using it at the same time. That’s quite an interesting dynamic as we advocate for constitutional structures, but at the same time, recognize the pragmatic issues that need to be addressed.

Now, I’ve got a question that I’ve been thinking about for a while, and many people have. At the Grassroot Institute, we’re very committed to transparent government, open and accountable government. We were concerned when, originally, the governor enacted the first emergency decree and actually suspended some public records laws at that time. Now, is there anything being done to fully restore public records laws and government transparency in general for the public?

Hill: That’s a very good question. Hawaii was the only state to suspend public records law early in the pandemic. It was lifted a few months later, but there was a lot of criticism, and Grassroot Institute joined that criticism [from] government watchdog groups, [such as] Common Cause, and [Honolulu] Civil Beat, of the governor for taking that action. It seemed unnecessary. 

This was definitely something that you would like to see a rationale for the suspension of the law. There has been a bill introduced specifically on that issue, SB2916. It prevents suspension of open records or vital statistics requests during an emergency.

Obviously, that’s a very good law, and I would like to see it passed, but there’s no reason why we couldn’t see protections for transparency added to whichever emergency management bill moves forward this session. 

It would be nice to see that element in there, it would be nice to see something that recognizes the need for greater transparency from those in the part of the executive and his advisors, and the actions taken in an extended emergency like that.

Akina: Malia, my last question for you has to do with your role. One of the things you do as policy director for the Grassroot Institute is scour the country for best practices to find where there are states that may have solved problems that we have. Have you seen any of the kind of legislation we’re talking about getting into effect in Hawaii go forward in other states?

Hill: It’s interesting, you talk about trying to adapt and respond to the problem on the fly, and that is happening in almost every state. According to the National Conference of State Legislatures, legislators in every single state proposed some kind of measure to address executive emergency powers during the pandemic, once it started. 

Different states have different laws, some are already more constrained than the one in Hawaii, some states have laws that separate different kinds of emergencies and who is allowed to act and why, and so on, so a lot of them have different time limits.

Bills were enacted in at least 19 states; 19 different states made changes to their emergency management law based on the experience during the COVID-19 pandemic. About half of them limited the length of time that a governor could maintain a state of emergency, or they required legislative approval to extend a state of emergency. So Hawaii is not even close to alone here.

Akina: Well, Malia, I want to thank you very much for being with us today. 

Our guest, Malia Hill, policy director for Grassroot Institute of Hawaii. I’m Keli’i Akina, president of Grassroot Institute, and you’re watching “Hawaii Together” on the ThinkTech Hawaii Network. Thanks, everyone, for being with us. Thanks again, Malia.

Hill: Thank you.

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