"Hoist the Yellow Flag and Spam Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority"

by Robert Thomas, InverseCondemnation, June 23, 2020

The University of Hawaii Law Review has graciously agreed to publish an article we've been working on, "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link).

The article takes a deeper dive into Hawaii's emergency laws, the judicial history of the Hawaii court on public health emergencies (we unfortunately have a lot of such history), some modern Hawaii Supreme Court jurisprudence, and Hawaii's love of Spam® (the lunch meat, not the junk email). It also takes a hard look at the most important limitation on government power in an emergency, the statutory requirement that any emergency proclamation automatically terminates no later than sixty days after it is issued.

(Tomorrow, we'll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by the Grassroot Institute of Hawaii, "Lockdowns, testing and tracking: Are they all really legal?").

Here's the Introduction to the article:

In its various iterations—Kingdom, Republic, Territory, and State—Hawaii’s government has a long and storied experience responding to public health emergencies. For example, over the past two centuries, the government has imposed strict quarantine regulations and required sequestration of incoming travelers to guard against smallpox; transported people afflicted with Hansen’s disease to isolation in Kalaupapa, Molokai; and burned down large portions of downtown Honolulu in response to an outbreak of bubonic plague. Hawaii’s government has also dealt with its share of emergencies unrelated to public health: it imposed years of martial law after the attack on Pearl Harbor, and has responded to tsunamis, hurricanes, volcanic eruptions, and even inbound nuclear missiles (fortunately a false alarm). As a result of these experiences, the Hawaii Supreme Court has a long history of considering legal questions related to the power of government to plan for and respond to emergencies, which recognized government’s substantial power, with a few inherent limitations. But until 2014, when the Hawaii legislature adopted a comprehensive structural overhaul, Hawaii’s emergency response statutes and organization were a patchwork of scattered provisions that did not conform to modern emergency management and response practices. The statutory update continued the longstanding delegation of an overwhelming amount of authority to the governor (and mayors, in the case of local events) to respond to emergencies.

The law’s first major test has been a very dramatic one: the COVID-19 worldwide pandemic erupted in full in March 2020, and Hawaii Governor David Ige exercised his statutory authority to issue a declaration of emergency by proclamation on March 4, 2020 (and nine supplemental proclamations), which collectively suspended a wide range of statutes, ordered activities deemed “nonessential” to stop or be limited, imposed a two-week self-quarantine on interisland, mainland, and international travelers, effectively shut down one of the main engines of the Hawaii economy—tourism, and compelled most residents to remain at home as much as possible. The March 4, 2020 proclamation declared that the emergency would terminate on April 29, 2020, but as the public health crisis appeared to grow and continue, subsequent supplemental proclamations purported to extend the termination date, at latest count to July 31, 2020.

Even though legal challenges to similar emergency restrictions have developed in other jurisdictions, Hawaii’s courts have thus far not been presented with a multitude of objections to the governor’s exercise of these emergency powers. Perhaps because it is mostly predictable how a court would analyze a challenge to emergency powers under the U.S. Constitution. The leading U.S. Supreme Court case about the power of government to protect the public health, Jacobson v. Massachusetts, upheld the state’s vaccine requirement, concluding that a person’s liberty could be limited by reasonable regulations designed to protect “the safety of the public.” The Court based its reasoning on public “self-defense,” noting that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The only limitation is that the power cannot be exercised in “an arbitrary, unreasonable manner.” Jacobson reaffirmed the very low floor for most constitutional challenges to assertions of police power generally, and emergency police power specifically.

In this article I examine whether Hawaii law might compel a different analysis. Most state emergency power statutes, like Hawaii’s, contain internal limitations on delegated emergency power. I argue that Hawaii’s statute contains a single major check on the governor’s delegated authority: the “automatic termination” provision, under which an emergency proclamation terminates by law the sixtieth days after it was issued, or when the governor or mayor issues a “separate” proclamation, whichever comes first. This provision is an essential limitation on the power of the governor, with the only real question being whether that limitation will be enforced by the courts. Despite the statute’s clear limitation on power, I conclude that the circumstances in which a court would sustain a challenge to the governor’s power as a matter of Hawaii law are very limited, and that the primary remedy which a court will likely recognize is a political one. It should not be so, however. Under existing precedents, there are at least two ways in which a court might analyze this limitation. This article examines the prominent narrative threads that have emerged from Hawaii’s judicial history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.

Which brings me to the title of this article, and its reference to Spam® (the canned luncheon meat, not annoying unsolicited email). When emergencies loom, Hawaii residents are known to stock up on essentials like toilet paper, rice, and Spam®. If the courts are reluctant to enforce the sole limitation on executive power in the statute, then all that is left is to stock up on Spam®, keep vigilant, and hold political officials accountable. This means identifying the shortcomings in the present law and clarifying the statute at the earliest possible opportunity. Which is what the article ultimately proposes. The alternative is rule by indefinite executive decree, as the COVID-19 emergency starkly illustrates, a result that Hawaii’s emergency response statute plainly rejects.

In section II, I provide some background about the inherently limited power of the government to undertake extreme measures without triggering judicial intervention. Section III details Hawaii’s statutory delegation of emergency powers to the governor and county mayors, while section IV analyzes the sole major check on that power, the automatic termination of emergency declarations which ends a declaration when the governor or mayor issues a “separate” declaration, or sixty days has passed. Section V examines the two main narrative threads that emerged from the Hawaii Supreme Court’s decisions about public health emergencies and other exercises of the police power. I conclude with a few observations and suggestions. My purpose here is not to assert what the government’s response to particular emergencies should be—or whether the response to the ongoing COVID-19 emergency is correct—but only to highlight and identify areas in which the legislative and judicial analysis could be more meaningful and transparent, as a way of suggesting how Hawaii’s law can be improved for the next emergency.

(footnotes omitted)