When Gov. David Ige’s latest emergency order related to Covid-19 expires on Nov. 30, it will mark 636 days since the governor issued his first such order in March 2020. How many more days it will go on is anyone’s guess.

“You’re right,” Ige’s spokeswoman Cindy McMillan said in an email. “It’s still too early to tell.”

McMillan noted that many provisions in Ige’s original emergency proclamation, issued on March 5, 2020, are no longer in effect. But, she said, “How the next (assuming there will be one) will shape up, it’s just too soon to know.”

So while the public waits for word on what Ige will do — and what the holidays in Hawaii will look like at restaurants and family gatherings — a growing chorus calling for loosening restrictions now includes some prominent medical professionals and people with the clout to reduce the governor’s power to govern by fiat.

Gov. David Ige, pictured here in March 2020, issued his first emergency proclamation related to Covid-19 more than 600 days ago. Cory Lum/Civil Beat

Hawaii House Speaker Scott Saiki said he plans to sponsor a bill that will give lawmakers the authority to nullify parts or all of Ige’s emergency orders. While similar bills stalled last session, those weren’t sponsored by the influential House speaker.

Saiki said he’s concerned about how far the governor is pushing the limits of the executive branch’s legal authority.

“I’m going to drop it,” he said, referring to introducing the bill. “So we’ll see what happens.”

The last time lawmakers took a comprehensive look at the Hawaii governor’s authority to exercise emergency powers was during the 2013 and 2014 legislative sessions. At that time, it had been more than 60 years since the Legislature passed the state’s disaster relief statute giving the governor broad authority in a state of emergency.

In the bill’s preamble, its author, then-House Speaker Joe Souki, noted that the original 1949 law and its federal counterpart, which had been designed to protect against Cold War attacks, was simply obsolete.

“The present way we plan for, respond to, mitigate and recover from man-made and natural catastrophic events is not reflected in Hawaii’s present emergency management laws,” Honolulu Police Department Capt. Gordon Grimes testified at the time, reflecting the unanimous support for changing the law to fit the times.

After hearings spanning two sessions, the Legislature amended and recodified the state’s emergency preparedness laws as Chapter 127A, Hawaii Revised Statutes, bearing the title “Emergency Preparedness.”

Six years later, Ige would invoke the statute to close businesses, order people to stay at home and require travelers to quarantine with no exceptions during the early days of the pandemic — a time when public health officials were expressing grave concerns that people sick with the novel virus could overwhelm hospitals and force doctors to make grim decisions about which patients to treat.

House Speaker Joe Souki waves to legislators on opening day. 21 jan 2015. photograph Cory Lum/Civil Beat
Lawmakers took a comprehensive look at the state’s emergency powers law in 2013, after then-House Speaker Joe Souki, pictured here in 2015, introduced a measure that noted the law hadn’t been updated in more than 60 years. Cory Lum/Civil Beat

The mechanics of the statute are simple. The governor can declare a state of emergency with a finding that an emergency or disaster has occurred or that there is imminent danger or threat of one.

Under the law, “emergency” means any occurrence or imminent threat that results or could likely result in substantial injury or harm to the population or substantial damage to or loss of property.

Once the governor declares an emergency, the governor has enormous powers to do things in the name of responding. The emergency goes on as long as the governor decides it does.

Although the statute also gives mayors emergency powers, the governor has the power to trump them and coordinate the state’s response. Ige did just that in his emergency proclamation dated Sept. 1, explaining simply, “it is my opinion that it is necessary to coordinate emergency management functions.”

The Sept. 1 proclamation goes on to invoke numerous additional powers, which Ige cites when outlining vaccine mandates for government workers and restrictions for travelers and businesses. In addition to these oft-cited restrictions, the order does other things related to the state’s medical response, such as waiving Hawaii’s licensure requirements for licensed nurses who come from other states to help.

Ige’s office declined to comment on whether he would end Hawaii’s state of emergency, or, if he decides to maintain it, loosen restrictions. However, in a Civil Beat article published last week Sarah Kemble, Hawaii’s state epidemiologist, shared her view that the pandemic was far from over.

“We can fully expect to see more surge waves to come,” she said.

Ray Vara, left, CEO of Hawaii Pacific Health, and state Rep. Linda Ichiyama surveyed an area set up as a mass vaccination center in the Blaisdell Center. Vara says it’s time for Hawaii to reconsider its Covid-19 policies. Stewart Yerton/Civil Beat

It’s hardly new that Covid restrictions face opposition from businesses and organizations, including the Hawaii Restaurant Association. It’s also nothing new to hear pushback from city and county officials, like Honolulu’s Mayor Rick Blangiardi, who recently told Hawaii News Now, “This is about going forward and living with it. We have shifted from a pandemic to an endemic.”

But the opposition is growing. Lt. Gov. Josh Green, a medical doctor who serves as Ige’s Covid-19 liaison, says it’s time for Ige to narrow the scope of the state’s restrictions.

More than 71% of residents are now vaccinated, fewer than 2% who get tested turn out to be positive, and the state’s new case count over the past week has averaged just over 100 – all signs that Hawaii has reached a new stage, Green said.

“With the lowest rates in the country and the highest vaccination rates, it seems (time) we trust our people and move away from these restrictions,” Green said. “All of the key indicators suggest that we are the safest place in the country, so I hope that we can have a normal holiday season without these restrictions.”

Ray Vara, the president and chief executive of Hawaii Pacific Health, the state’s largest hospital company, agreed it’s no longer necessary to have what he said is one of the nation’s most conservative policies regarding Covid restrictions.

“I don’t necessarily believe that’s a posture we need to be taking,” he said.

State Lawmakers Across U.S. Check Governors’ Power

For now, only Ige can decide whether Hawaii will change that posture. But lawmakers are looking at ways to rein in the governor. And Hawaii is hardly alone.

According to the National Conference of State Legislatures, legislators in every state have proposed measures to limit executive emergency powers during the pandemic.

Many of these bills have gotten traction. According to NCSL, such bills or resolutions have been adopted or enacted in at least 19 states: Alaska, Arkansas, Connecticut, Florida, Idaho, Indiana, Kansas, Kentucky, Michigan, Montana, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Utah and Wyoming.

Some bills have dealt with issues like how much say the legislature could have over the use of emergency funding from the federal government.

But others dealt with non-fiscal issues and the extent to which a legislature could place a check on a governor’s power during a slow-moving and prolonged public health crisis. About half the bills have limited the length of time a governor could maintain a state of emergency or required legislative approval to extend a state of emergency, according to NCSL.

Other measures have let lawmakers step in and terminate states of emergency or emergency orders. A measure adopted in Kansas, for instance, says the Kansas Legislature can “review and revoke all orders and proclamations issued by the governor” pursuant to Kansas’ emergency powers statute. In Michigan, the house speaker and senate majority leader can now step in to sue the governor regarding executive actions taken related to the pandemic.

“I think generally there is a concern about how far a governor’s powers should go,” Saiki said in a telephone interview from NCSL’s annual meeting in Florida, where lawmakers from around the U.S. were comparing notes on critical issues like state responses to Covid-19 and climate change.

Saiki said he was concerned about anecdotal reports that Hawaii residents and businesses are starting to simply shrug off some Covid rules.

“That’s a big issue: the public’s compliance,” he said.

Saiki said the bill he envisions would create a procedure allowing lawmakers to strike down an emergency order in whole or part. Such a bill would allow Hawaii to keep in place policies related to, say, the medical profession, while eliminating social distancing requirements at restaurants where patrons were vaccinated.

Saiki acknowledged such a measure could have unintended consequences. For instance, he said, it could encourage special interests to pressure lawmakers to eliminate a provision needed to protect the public health.

“It’s double-edged,” he said.

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