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Amendments to HB1902 would help it rein in emergency powers

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration by the House Committee on Water and Land on Jan. 30, 2024.
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Jan. 30, 2024, 9 a.m.
Hawaii State Capitol
Conference Room 430 and Videoconference

To: House Committee on Water & Land
      Rep. Linda Ichiyama, Chair
      Rep. Mahina Poepoe, Vice-Chair

From: Grassroot Institute of Hawaii
           Ted Kefalas, Director of Strategic Campaigns

RE: HB1902 — RELATING TO EMERGENCY MANAGEMENT

Comments only

Aloha Chair Ichiyama, Vice-Chair Poepoe and other members of the Committee,

The Grassroot Institute of Hawaii would like to offer its comments on HB1902, which would amend the state’s emergency-management statute to state that the powers granted for emergency purposes must be consistent with the Hawaii Constitution; clarify the powers of the governor and mayors to extend an emergency via proclamation; and shorten the duration of price control periods in an emergency .

We agree that the emergency management statute is in need of an update, but we are concerned about the potential effect of these amendments. The requirement that the exercise of emergency powers be consistent with the Hawaii Constitution is a welcome addition, but we think it does not go far enough to protect civil liberties.

In particular, the clause allowing the governor or mayors to extend an emergency via proclamation would exacerbate a problem in the state’s current emergency-management law that was not apparent until the COVID-19 lockdowns, which is the lack of a meaningful legislative check on the governor’s emergency powers.

Currently, the law includes a 60-day limit on emergencies, but it does not address what should happen if an emergency exceeds that limit. This bill would make that problem even more severe by guaranteeing that the governor and mayors would be able to extend their emergency proclamations indefinitely, with little input or oversight from the legislative branch.

What is needed is a legislative check on the possibility of an unending emergency arising from the governor’s or a mayor’s ability to issue supplemental proclamations extending the original emergency period.

Such a check would be more meaningful if multiple extensions of an emergency required legislative approval, regardless of whether the Legislature is in session.

Here are some proposed amendments that would make the bill better:

  1. In Section 3, amend Section 127A-14, subsection (d) to read:

(d) A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, [or] unless extended or terminated by a separate or supplementary proclamation of the governor or mayor, [whichever occurs first] provided that the proclamation extending the emergency meets the following qualifications:

(1) It is the first extension of the emergency period issued by the governor or mayor and extends that emergency by no more than 60 days.
(2) The Legislature has approved the extension by concurrent resolution.
(3) The Legislature has not convened a special session to debate the extension of the emergency within 10 days of the issue date of the proclamation extending the emergency.

(a) Pursuant to the Legislature’s rules governing petition for a special session, the House and Senate may petition the President of the Senate and Speaker of the House to convene a special session for the purpose of debating the extension of the emergency. The petition and special session must occur within 10 days of the issue date of the proclamation extending the emergency. If the special session does not convene within 10 days, the extension is deemed approved by the Legislature.
(b) If the Speaker of the House or President of the Senate notifies the governor or mayor of the need for a special session to debate the extension of an emergency, the governor or mayor may withdraw the proclamation extending the emergency and allow the emergency to terminate.

2. In addition, add the following after Section 127-A14 (e):

(f) A proclamation by the governor declaring the existence of a state of emergency arising from the same emergency or disaster for which a previous emergency proclamation was terminated by the Legislature may be authorized for a period of up to sixty days only upon request of the governor and adoption of a concurrent resolution by the Legislature.
(g) The governor or mayor shall proclaim the termination of a state of emergency or local state of emergency, respectively, at the earliest possible date that conditions warrant

During the COVID-19 emergency, we had the opportunity to learn more about what we do well and what could be improved. These proposed amendments would help ensure that the public retains a voice in an ongoing emergency, and that the emergency powers do not become a tool for unchecked executive power.

Finally, shortening the period of price controls during emergencies would be a step in the right direction. Economists frown on price controls — even during emergencies[1] — as they tend to create economic inefficiencies and distort the market, often hurting the disadvantaged and vulnerable populations they are designed to help.[2]

If anything, such controls incentivize those with more resources and advantages to take advantage of artificially lower prices, leading to hoarding and unnecessary purchases. One study found that pandemic-era price controls actually undermined COVID-19 mitigation efforts, as they exacerbated shortages and forced consumers to travel to more stores in order to locate goods, thereby frustrating social-distancing efforts.[3]

Keeping the duration of price controls to a minimum, or even eliminating price controls completely, would help address the problems caused by the market disruptions they cause.

It is important that Hawaii’s emergency management law reflects the lessons we have learned over the past few years. There is room to protect civil rights and the balance of powers without handicapping the executive’s ability to respond quickly and effectively to emergency situations. The goal should be to amend the law so that Hawaii is better able to address future emergencies.

Thank you for the opportunity to submit our comments.

Sincerely,

Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii
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[1] Price Gouging Poll, Chicago Booth: Kent A. Clark Center for Global Markets. May 2, 2012.

[2] Ryan Bourne, “Abolish Price and Wage Controls,” Cato Institute. Sept. 15, 2020.

[3] Chakraborti, R., Roberts, G. “How price-gouging regulation undermined COVID-19 mitigation: county-level evidence of unintended consequences,” Public Choice 196, 51–83 (2023). https://doi.org/10.1007/s11127-023-01054-z

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