When An Agency Is Given Emergency Powers, Pretty Soon Everything Looks Like An "Emergency"

by Robert Thomas, Inverse Condemnation, July 26, 2018

Stewart Yerton (a reporter who is also a lawyer) today published this report ("This Murky Law Could Give The Governor Broad New Powers") in Honolulu Civil Beat about a new Hawaii statute that gives administrative agencies the power to adopt emergency rules to respond to court rulings. 

Is the statute innocuous, merely a new tool to make agencies more nimble and able to react more quickly to state and federal court rulings? Or is it something more, a way to bypass the usual rules about rules, provided there's a real or perceived "emergency?"

Here's how we responded when asked what we thought: 

(We wish we could take credit for that pithy line, but it's a paraphrase from the Burt Lancaster/Tony Curtis classic noir Sweet Smell of Success.)

And that's what this statute looks like to us -- maybe harmless (as some in the story opined), but also potentially not.

Two immediate questions. First, how will the agencies themselves view their new powers? After all, when an agency is granted powers to act in an emergency, it is natural that pretty soon everything starts looking like an "emergency." Second, how will the courts react to agencies reacting that way? The Hawaii Supreme Court has not exactly been overly receptive to executive and legislative efforts to react nimbly to court rulings. So we shall see, we suppose.

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July 26, 2018: Act 56: Murky Law Could Give Governor Broad New Powers