With Long COVID Comes Long Emergency Powers

by Tom Yamachika, President, Tax Foundation Hawaii

Throughout the COVID-19 pandemic, as readers of this column may recall, our Governor exercised emergency powers, including suspending a gaggle of laws, for two full years.  It started with the first emergency proclamation on March 4, 2020, which lasted for 60 days, the maximum allowed under the emergency powers statute.  But just before the proclamation expired, the Governor issued a new one that would last another sixty days.  That pattern continued, and continued, and continued, until the Emergency Proclamation Related to COVID-19 (Omicron Variant) that was signed on January 26, 2022, and expired on March 25, 2022.  Interestingly enough, the proclamations started off being serially numbered (Seventh Supplementary Proclamation, Eighth Supplementary Proclamation) until they got to the Twenty-First Proclamation.  Then they started calling the proclamations something else.  The Twenty-First Proclamation Related to the COVID-19 Emergency was followed by the Emergency Proclamation Related to the COVID-19 Response, and then Emergency Proclamation Related to the State’s COVID-19 Delta Response.  I guess the folks in the Governor’s Office were getting themselves worried that the emergency proclamations were being issued/reissued more than a few times.

What readers might not have known is that an organization named For Our Rights sued the Governor, the Attorney General, and the State, seeking to have a court declare that this practice of chaining proclamations was illegal.  The courts, however, found otherwise.  In a case named For Our Rights vs. Ige, the Intermediate Court of Appeals held that there was nothing wrong with what the Administration did.  The statute, the court said, doesn’t say the Governor can’t issue more than one emergency proclamation based on the same emergency.  The court says that as long as the Governor finds that circumstances giving rise to a declaration of a state of emergency have occurred, or that there is imminent danger or threat of an emergency, then the Governor can issue a second, or third, or fourth, proclamation.  That is, the Governor can’t extend the period of an emergency proclamation but the Governor can issue a new proclamation two months later if the danger to our State is still there.  For Our Rights asked the Supreme Court of Hawaii to take a look at the case, but on June 20, 2022, the Supreme Court declined to do so.

Against this backdrop, the 2022 Legislature considered and passed a bill, SB 3089, that would have clarified the legal framework governing the extension and termination of emergency periods, and allowed for the Legislature to terminate a state of emergency or a local state of emergency.  But the Governor recently vetoed that bill.  “The authority given to the Legislature in the bill to terminate a state of emergency,” the Governor’s veto message said, “would severely interfere with the Governor's duties and legal obligations to provide for the public health, safety, and welfare by limiting the Governor's ability to determine the duration of a state of emergency or disaster within the State if the circumstances giving rise to the state of emergency continue.”  Translation:  “It would limit the Governor’s power, so it’s bad.”

The emergency powers granted by our laws are broad and sweeping.  It’s scary to have them all in the hands of one person.  We’ve earlier complained that those powers were used to torpedo laws that had little or no connection to emergency relief, such as suspending the distribution of transient accommodations tax money to the counties, the public procurement code, and government transparency laws.  Where are the checks and balances when you need them?

We ought to be fixing this situation before we have another emergency.  Who knows what laws might be on the chopping block next?