Let’s Not Wait Another Year To Fix Emergency Statute - Honolulu Civil Beat

About the Author

Kelii Akina

Kelii Akina is the president and CEO of the Grassroot Institute of Hawaii.

The legacy of Gov. David Ige and the current Hawaii Legislature will be forever shaped by the handling of the Covid-19 crisis and subsequent lockdowns. With the worst of the danger behind us and rebuilding ahead, one major question remains: Will Hawaii’s leaders respond to what we learned during the crisis?

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While the governor and the Legislature may have done their best to protect the public’s health and safety, the crisis highlighted issues and inefficiencies at every level, from the political and economic to the delivery of basic necessities.

Our goal now should be to address those problems and put Hawaii in a better position to weather the next crisis. Unfortunately, some policymakers appear to be ignoring the need for change in order to prop up the faulty status quo.

Consider, for example, the governor’s intent to veto Senate Bill 3089, the bill that would reform the executive’s emergency powers.

One of the greatest sources of confusion and frustration during the period came in the endless extensions of the emergency period, along with the seemingly arbitrary new rules and suspension of laws. For two years, the governor acted as a kind of super-legislator, as the emergency-management statute offered no check on his power.

A review of the statute made it obvious that our lawmakers never envisioned the kind of continuing health emergency that we were experiencing. The law includes a 60-day automatic termination provision that the governor bypassed by redeclaring the emergency through supplemental proclamations.

Medical technicians prepare COVID-19 tests, for sending to labs, at the Blaisdell drive-through testing site in Honolulu, Monday, December 27, 2021. (Ronen Zilberman photo Civil Beat)
The worst of the pandemic appears to be behind us, but a future use of emergency powers will surely come. Ronen Zilberman/Civil Beat/2021

More to the point, the statute lacked any meaningful check on the governor’s power during an emergency. This may not be a concern when an emergency is limited to two months. But in an emergency that stretches for years, with orders that touch on constitutional rights and the long-term prosperity of the state, the lack of a mechanism to rein in the governor’s actions becomes a serious problem.

In simple terms, the current statute disrupts the constitutional balance of powers in our state. In order to restore that balance, it is necessary to add a way for the Legislature to check, guide and limit the governor’s actions in an emergency.

To address these deficiencies, the Legislature passed SB 3089 with overwhelming support. The bill allows the Legislature to end an emergency, in whole or in part, by a two-thirds vote. It also requires justification for the suspension of laws and states that the governor’s exercise of emergency powers must be consistent with the Hawaii Constitution.

SB 3089 is not a perfect bill. It codifies the governor’s ability to redeclare and extend emergencies without including a provision that would require legislative approval. It also lacks protection for transparency and open-records laws, which the governor suspended as part of his coronavirus lockdowns. Nevertheless, the bill would be an important step toward restoring the balance of powers in our state.

Gov. Ige has indicated that he will veto the bill, but his rationale is based on the idea that the executive requires unchecked power to handle emergencies — something we cannot tolerate in a democratic society.

For two years, the governor acted as a kind of super-legislator.

Moreover, his concerns about the availability of federal aid if the Legislature were to act are addressed by the provision permitting the Legislature to terminate the emergency “in whole or in part,” which allows flexibility to end an emergency in a limited way that will not affect federal funds or programs.

Ige must decide what he wants his legacy to be. Will he be the governor who learned from his experience and took action to protect liberty and the Constitution? Or will he be the governor who refused to give the people a voice and defended the overreach of executive power?

My hope is that Ige will exercise humility and wisdom by signing SB 3089 into law. If he doesn’t, the Legislature should not wait another year before restoring the balance of powers to our emergency statute and override his veto.

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About the Author

Kelii Akina

Kelii Akina is the president and CEO of the Grassroot Institute of Hawaii.

Latest Comments (0)

Agree that this bill should pass. Good article and informative. Thank you.

Scotty_Poppins · 1 year ago

My hope is that any governor we have takes the greater good into consideration, so yes veto SB 3089. Mr Akina seems to be mostly concerned about the individual as opposed to what we all need to do as a group, depending on the crisis, for the greater good.

Valerie · 1 year ago

I am not surprised by this attitude. In my 12 years on this Island, I've learned that the Hawaii government has a head-in-the-sand approach towards most things. The State had a full year to start a shift of revenue from tourism towards other areas that are more sustainable for both the Islands and their inhabitants. Instead, they spent the time bemoaning the loss of tourists. Even though the tourists are now back in full force, they're looking for ways to bring more tourists (but only those that can spend five digits or more!). It's a shame that this beautiful island cannot sustain its original inhabitants and that the Government is doing all they can to bring Island Life to an end through gentrification.

Maimo · 1 year ago

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