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When Gov. David Ige announced Saturday that all visitors coming to Hawaii must stay in quarantine for 14 days he used just some of the power granted to him under the Emergency Management Act.
Ige’s emergency proclamation that took effect March 4 and remains in place through April 29 also expands his administration’s powers to basically do anything it can to protect the public.
That power is typically reserved to respond to natural disasters, though Ige actually issues emergency proclamations quite frequently. He’s already issued 12 for Kauai flooding and seven for the state’s homeless situation.
Emergency proclamations typically target specific geographic areas of the state. When fires burned through central Maui, he suspended some laws for Maui so that the local government could react more quickly to the situation. And when he tried to use state powers to secure Mauna Kea Access Road for telescope construction, he suspended laws but only on certain parcels on the mountain.
But Ige’s emergency proclamation for COVID-19 is different. Instead of picking specific parts of the emergency law to enact or exercising it in specific parts of the state, Ige invoked all the powers under the act — for the entire state.
How the law applies and to whom is important for businesses, some of which may be wading through contractural obligations, and for residents in the state who might be confused about what these emergency proclamations actually mean.
“It’s not something that we spend a lot of time looking at … until this week,” said attorney Paul Alston, who heads one of the state’s largest law firms.
To a lesser extent, that section of the law also expands the powers of mayors.
The governor can quarantine people, suspend laws, shut off utilities, evacuate the population, take over infrastructure, and withhold and distribute supplies, among other things, according to the law.
“Basically, he can take any steps necessary to protect the public health,” said Alston, a partner at Dentons Honolulu, whose areas of practice include constitutional law.
He can’t stop tourists from coming to the state since movement of planes and boats is controlled by the federal government.
Ige can, however, decide what happens to those passengers once they get here.
“He can make it so uncomfortable for travelers that the airports would essentially be locked down,” Alston said.
Ige’s emergency powers allow him to restrict the movement of people in the state. That includes quarantining specific populations as long as the governor believes they might pose a risk to public health.
Targeting visitors, for example, could raise legal challenges, Alston said. But in this case, the courts are likely to side with the state.
“Governors are entitled to draw with broad strokes because it’s about protecting the public,” Alston said.
And yes, that even means closing bars, clubs and restaurants if he believes gathering in such places could endanger the public.
And while the governor’s announcement that he is directing bars to close and restaurants to serve only takeout was somewhat ambiguous, he doesn’t need an executive order to enforce such closures.
While he doesn’t necessarily have to set out details in writing, the governor must at least describe what powers he is using and how, according to Alston.
Kauai County, Maui County and the City and County of Honolulu all have similar bans in place. Those are not suggestions.
“It’s an order,” Honolulu Mayor Kirk Caldwell said at a press conference Wednesday.
Penalties for flouting any of the rules the governor or mayors impose while the emergency proclamation is in effect can include fines up to $5,000 and less than a year in jail.
Maj. Gen. Kenneth Hara, director of the Hawaii Emergency Management Agency, said Saturday that the four county police departments would enforce the 14-day quarantine for travelers.
At least five states have already issued “stay at home” orders.
Last week, House Speaker Scott Saiki and Senate President Ron Kouchi called for Ige to order residents to shelter in place but the governor stopped short of that.
It’s not clear what a statewide shelter-in-place order might look like in Hawaii. It could mean closure of non-essential businesses, or even curfews like on Kauai. States with such orders are still allowing people to go out for supplies, including to the grocery store, and for walks.
New Jersey Gov. Phil Murphy signed an executive order Saturday ordering all businesses to close except for grocery stores, banks, pharmacies, medical supply stores, gas stations, pet supply stores and restaurants.
New Jersey residents were also ordered to stay at home unless they must drive to work, buy supplies, go to the doctor, or visit family. And they can’t have large gatherings.
USA Today published a fact check of Facebook rumors that Trump would use The Stafford Act to impose a national quarantine. The Stafford Act doesn’t directly give the president power to quarantine.
The act is typically reserved for dealing with winter storms, hurricanes, fires and flooding, according to the CRS. It was last used when President Bill Clinton invoked the act to provide assistance to certain areas of New York and New Jersey to fight West Nile Virus in 2000.
“Emergency declarations may be declared before an incident occurs to save lives and prevent loss,” a CRS review of Stafford Act declarations says.
By using the Stafford Act, Trump can access $42 billion to help states and tribal communities that request disaster relief. The act also allows the Small Business Association to make $7 billion in loans for economic recovery assistance.
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