Gov. David Ige on Friday issued his 18th COVID-19 emergency proclamation, which suspends a myriad of statutes and keeps in place rules for dealing with the pandemic.

Like almost every other state in the U.S., Hawaii has been under emergency orders since March 2020. But if some Hawaii lawmakers have it their way, Ige won’t be able to indefinitely issue emergency proclamations for long.

One proposal moving in the House, House Bill 103, would limit emergency proclamations to 60 days and require two-thirds of the members of the House and Senate to approve any extensions.

Some lawmakers and Hawaii residents believe such measures could lead to better checks and balances on state government. Meanwhile, Ige’s administration opposes the bill, saying it could hamper the government’s response to future emergencies.

Rep Scott Nishimoto Chair Judiciary committee meeting.
Rep. Scott Nishimoto, pictured in 2018, has introduced a bill that would give the Legislature authority over extensions for emergency proclamations. Cory Lum/Civil Beat

Challenges to Ige’s emergency powers have so far been unsuccessful in court.

This year, Hawaii’s Legislature is among more than 30 in the country considering measures that seek to rein in their governors’ emergency powers. The proposals come a year after many in the state, including key lawmakers, have criticized Ige’s administration for its response to the pandemic.

Hawaii’s Emergency Management Act gives the governor broad powers to take almost any action necessary to protect the public health. Ige has issued several proclamations in the past few years dealing with flood control on Kauai, fires on Maui, lava in Puna, telescope protests on Mauna Kea and the state’s homeless population.

Rep. Scott Nishimoto, who sponsored HB 103, says he introduced the measure this year at the request of some of his constituents and neighborhood board members, who were concerned that there was not enough public input on the emergency orders. Nishimoto represents parts of Moiliili, McCully and Kapahulu.

“There needs to be checks. I think that is what my constituents were concerned about, that the governor has unilateral power to do things indefinitely and there is a lack of community input,” Nishimoto said.

Tim Streitz, chair of the McCully-Moilili Neighborhood Board, echoed that sentiment. He said residents raised questions at board meetings over whether extensions of the emergency proclamations were legal.

“It didn’t seem right that one single person had such authority for an extended period of time,” Streitz said.

Old Stadium Park Neighborhood member Tim Streitz.
Tim Streitz, pictured in 2018, said residents raised concerns about the governor’s emergency authority to the neighborhood board he chairs. Cory Lum/Civil Beat

HB 103 also has support from the nonprofit policy group Grassroot Institute of Hawaii. Joe Kent, the executive vice president of the institute, suggested in written testimony to lawmakers that a provision be added that allows the Legislature to repeal an emergency order at any time.

Public workers unions including the Hawaii Government Employees Association and the state police union also support the bill.

Opposition From The Governor

Ige’s administration opposes the measure.

Luke Meyers, administrator for the Hawaii Emergency Management Agency, urged lawmakers last week to consider after-action reports on the COVID-19 pandemic that should be published into next year before making any changes to the emergency management law.

Meyers said the restrictions in HB 103 could hamper the state’s ability to respond to emergency situations.

“As we’ve seen in any emergency, in any incident, they can be quite fluid,” Meyers said.

Hawaii Army National Guard personnel at COVID-19 surge testing held at Kapiolani Park. September 8, 2020
The Hawaii Emergency Management Agency opposes HB 103 and believes measures like it could slow government response to a crisis. Cory Lum/Civil Beat/2020

The bill was also opposed by the Maui Chamber of Commerce, which represents businesses on the Valley Isle.

“Hawaii is both a multi-island state and separated from the continental U.S., which makes fast decisions even more critical as we cannot drive for additional resources, and the urgency of decision-making often has a huge impact on our economic, health and local community recovery,” Pamela Tumpap, the chamber president, wrote in testimony to lawmakers.

HB 103 must only clear the House Finance Committee before it moves to the full 51-member House for a floor vote. House Speaker Scott Saiki told Civil Beat in January that lawmakers would focus on reining in extensions to the governor’s emergency powers.

There are 24 state legislatures that already have the power to terminate executive orders, according to a survey of state statutes from the National Conference of State Legislatures.

The 2021 Legislature

In addition, more than 30 other state houses including Guam’s are considering other measures to tamp down a governor’s emergency power, according to the NCSL.

The American Legislative Exchange Council, a conservative think tank, drafted model legislation pushing for more oversight of state governors’ emergency authorities. However, ALEC’s language doesn’t appear in any Hawaii bills.

Legal challenges to state and county emergency orders have so far been unsuccessful.

In October, Third Circuit Court Judge Wendy DeWeese ruled in favor of the state in a case of Big Island residents challenging Ige and former Hawaii County Mayor Harry Kim’s extension of emergency orders. DeWeese wrote in a court order that the supplementary proclamations were lawful.

In July, a federal judge ruled in favor of the state in a case challenging Ige’s travel quarantine. The Hawaii residents who sued the state claimed the rules were discriminatory.

Meanwhile, a class-action lawsuit brought by bar owners against the City and County of Honolulu argues that the county’s restriction on bars is arbitrary. The suit is still pending in federal court in Hawaii.

Malia Hill, the policy director of the Grassroot Institute who authored its policy brief “Lockdowns Versus Liberty,” said that HB 103 and measures like it could help individuals find remedies to their problems with emergency orders without having to take those issues to court.

HB 103 also includes a provision that would require the governor to present his rationale for suspending certain laws. An obvious example, Hill says, is the suspension of the public records law.

“What is the connection between responding to an open records request and the public health?” Hill said.

Providing rationale for suspending statues also serves a practical purpose: helping Hawaii residents understand what situation the state is in.

“For everyone who has been frustrated with the rules — we can all agree that better transparency equals better cooperation,” Hill said.

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