What happened to our state’s balance of powers?

by Keli'i Akina, Ph.D., President/CEO Grassroot Institute, September 10, 2021

When we got our first look at the tier system that outlined how our lives would be restricted by COVID-19 orders, we didn’t realize that eventually we, the people, would be divided into tiers.

We are rapidly approaching the point where Hawaii residents will be divided into “cans” and “cannots,” where our levels of individual freedom will depend on our abilities and desires to comply with various government health edicts.

Is this really where we want to go as a society?

I have said it before, but it bears repeating: I believe that the government can play an important role in safeguarding public health. For example, educating people on the COVID-19 vaccine and making it widely available has been a positive and beneficial exercise of government authority.

However, somewhere along the line, we have lost our way. We have become so accustomed to rule by executive order that we have forgotten about the balance of power and why it is important. That, more than anything else, explains why the government is getting bigger and the individual is getting smaller in the era of COVID-19.

A week ago, I attended a conference where a public-interest lawyer talked about individual rights in light of the increasing COVID-19 restrictions. As he explained it, we tend to focus heavily on our civil liberties and talk about which rights are being infringed on, such as the right to make your own health decisions, make a living, speak out against various orders, and so on.

But a Bill of Rights by itself isn’t special. Nearly every country, no matter how tyrannical, can point to its own Bill of Rights. North Korea’s version includes freedom of speech, press, assembly, religion, medical care and even “relaxation.” What really matters is not whether you can list a series of individual rights in your constitution, but whether your system of government is set up to protect those rights and give them meaning.

That’s why the balance of powers is so important. We need the judiciary, legislature and executive to check each other, to ensure that no branch exceeds its scope or usurps the others’ powers. Without that balance, we have no guarantee that our civil liberties will be protected.

Thus, it is no coincidence that the growing incursions on individual rights through the various county, state and federal COVID-19 measures have all been accomplished through executive orders. In other words, they are the result of the executives acting as legislators, with no checks on their powers from the judiciary or legislature.

For a year and a half, our daily lives have been regulated by executive orders. Our state legislators have been unwilling to step in and reassert their role, and the judiciary has been inclined to defer to the executive based on the emergency management statute — a legislative measure.

When I write about actions such as vaccine mandates or health passports, I am sometimes asked what people can do to protect their rights. But, at heart, this isn’t a problem of rights. It’s a problem of governance. In the name of mitigating COVID-19, we have allowed the executive branch to overreach. If we want to correct it, we need to restore the balance of powers by creating greater legislative and judicial checks on what the governor and mayors can do in an emergency, including for how long they can do it.

I do not mean to minimize the importance of protecting public health. However, it seems like much of the government’s management of COVID-19 falls under the theory that the ends justify the means. Yes, the government should work to protect human life, but the means it uses to do so must be examined carefully. If we are to preserve good governance and civil rights, we have to ask whether the state’s actions are narrowly tailored to achieve their objective without infringing on our liberties.

And we have to ask whether those actions should be implemented through executive orders. I contend that the governor, mayor and even our president are overreaching, and the people deserve a larger say.

We are at the point where I am increasingly worried about what the growth in executive power means for the future of liberty. Will we be able to stuff that genie back in the bottle? Have we done irreparable damage to our constitutional structure? We, the people, need to answer these questions.