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HB1902 HD1 lacks legislative check on emergency powers

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration by the Senate Committee on Public Safety and Intergovernmental and Military Affairs and Senate Committee on Commerce and Consumer Protection on March 15, 2024.
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March 15, 2024, 3:01 p.m.
Hawaii State Capitol
Conference Room 225 and Videoconference

 To: Senate Committee on Public Safety and Intergovernmental and Military Affairs.
       Sen. Glenn Wakai, Chair
       Sen. Brandon J.C. Elefante, Vice-Chair

       Senate Committee on Commerce and Consumer Protection
       Sen. Jarrett Keohokalole, Chair
       Sen. Carol Fukunaga, Vice-Chair  

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

RE: COMMENTS ON HB1902 HD1 — RELATING TO EMERGENCY MANAGEMENT

Aloha Chairs, Vice-Chairs and other Committee members,

The Grassroot Institute of Hawaii would like to offer its comments on HB1902 HD1, 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 during 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 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.

For that reason, we respectfully suggest an amendment that would authorize the Legislature to terminate a declared state of emergency after 60 days via an affirmative two-thirds vote in both chambers.

An amendment that retains legislative power over the prospect of unending supplemental proclamations 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 intended 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 constitutional balance of powers without handicapping the ability of the governor 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,” 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] Rik Chakraborti and Gavin Roberts, “How price-gouging regulation undermined COVID-19 mitigation: county-level evidence of unintended consequences,” Public Choice, Vol. 196, 2023, pp. 51–83.

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