Testimony: SB3089 lacks legislative check on governor’s emergency powers

by Grassroot Institute of Hawaii, February 8, 2022

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration on Feb. 8, 2022, by the Senate Committee on Public Safety, Intergovernmental and Military Affairs.
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To: Senate Committee on Public Safety, Intergovernmental, and Military Affairs
       Senator Clarence K. Nishihara, Chair
       Senator Lynn DeCoite, Vice Chair

From: Grassroot Institute of Hawaii
            Joe Kent, Executive Vice President

RE: SB3089 — RELATING TO EMERGENCY MANAGEMENT

Comments Only

Dear Chair and Committee Members:

The Grassroot Institute of Hawaii would like to offer its comments on SB3089, which would amend the state’s emergency-management statute to clarify that the powers granted for emergency purposes should not be inconsistent with the Hawaii Constitution, require statements of justification for the suspension of laws and place parameters on such suspensions, and allow the governor or mayors to extend an emergency by supplemental proclamation.

While this bill does make a laudable effort to reinforce that the emergency powers must be exercised constitutionally, it fails to address an oversight in the state’s current emergency-management law that was not apparent until the COVID-19 pandemic: the lack of a meaningful legislative check on the governor’s emergency powers.

At present, the law includes a 60-day limit on emergencies, but does not address what should happen if an emergency exceeds that limit. Thus, it is possible for the governor to extend an emergency period indefinitely, with little input or oversight from the legislative branch. Given that the emergency-management law already gives broad legislative powers to the executive, the result is an upsetting of the balance of powers in the state for an extended period of time.

Without a voice in government via their elected representatives, the people lose trust in their elected officials. It is clear that the Legislature must play a larger role in any proposed extension of an emergency period and act as a safeguard for the rights, safety and health of the public.

Unfortunately, this bill perpetuates this problem by giving the executive the power to extend an emergency without limit. The inclusion of this provision implicitly acknowledges the problematic nature of the current extensions of an emergency via proclamation, which has happened many times over the course of the coronavirus crisis. However, it fails to restore the balance of powers by requiring legislative approval to extend an emergency, nor does it allow the Legislature to  vote to terminate an emergency.

We suggest that the committee make a few changes in order to address the shortcomings of this bill.

For example, the bill addresses the problem of the statute’s vague “automatic termination” clause by specifying that the governor may extend the emergency by supplementary proclamation. While this does clarify the issue, it does little to discourage extended/perpetual emergencies. We suggest adding a provision stating that supplementary proclamations extending an emergency must be approved by the Legislature via concurrent resolution.

In addition, the Legislature should be given the power to terminate an emergency by concurrent resolution. Moreover, the bill should also provide an avenue for the Legislature to act while not in session. This could be addressed via a requirement that the governor obtain legislative approval for before extending an emergency by supplemental proclamation. Given the need to create a streamlined approval process in an emergency, the bill could include a mechanism whereby the Legislature could approve or deny extension through the use of remote technology.

We appreciate that there might be occasions where the Legislature wouldn’t hesitate to approve the governor’s proclamation, but there is still a useful purpose to requiring official approval via concurrent resolution.

These changes would ensure that Hawaii’s residents always have the chance to weigh in on the governor’s actions. They also would emphasize the importance of maintaining the constitutional balance of powers, even in an emergency.

Finally, we ask that the committee to consider how to better protect civil liberties during an emergency. In the Grassroot Institute policy brief “Lockdowns Versus Liberty,” we looked at how the state’s emergency-management law could be reformed in light of lessons learned during the coronavirus lockdowns.

In addition to the need for a legislative check and restoring the balance of powers, we identified three principles that should be considered while dealing with emergencies touching on public health:

>> Ensure that restrictions and regulations are narrowly tailored, with a clear connection between the restriction and the public health aim.

>> Reinforce the importance of due process standards by requiring the government to bear the burden of proving that an order that closes a business or deprives an individual of a right is both necessary and reasonable.

>> Strive for more transparency in decision-making and directives, including protections for existing sunshine and open-records laws.

Finally, it would be good to see a firmer statement in favor of preserving government transparency, especially the state’s sunshine laws and open records laws, as well as stronger guarantees that emergency orders that close a business or deprive an individual of a right would also have to demonstrate a rational basis for the restriction.

Throughout the COVID-19 emergency, we have had the opportunity to learn more about what we do well and what could be improved. Unfortunately, this bill does not go far enough to put those lessons into place and restore the balance of powers to our emergency management statute.

Thank you for the opportunity to submit our comments.

Sincerely,

Joe Kent
Executive Vice President
Grassroot Institute of Hawaii