Ending Government by Fiat

by Tom Yamachika, President, Tax Foundation Hawaii

Several times in this space, we have discussed the Governor’s emergency powers. Our laws (chapter 127A, HRS) give the Governor broad powers to deal with emergencies.

One of those powers is to: “Suspend any law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions, ….”

But a “state of emergency,” which causes the Governor’s powers to kick in, is supposed to terminate automatically after sixty days.

Our Governor has gotten around this limitation by proclaiming a continued emergency just before the sixty-day clock runs out, thereby restarting the sixty-day clock. Most of us have lost count of the number of emergency proclamations. The “Twenty-First Proclamation Related to the COVID-19 Emergency” was posted on June 7, 2021; the suspension of laws in that proclamation was continued by the “Emergency Proclamation Related to the State’s COVID-19 Delta Response,” posted on October 1, 2021. Apparently, some folks were not comfortable that the proclamation number had gotten as high as 21, so they changed the title to restart the count. But make no mistake; we have been under chained emergency proclamations since the “Proclamation Related to the COVID-19 Emergency” on March 5, 2020. It’s been an emergency for 21 months and counting.

The recent discovery of a new and dangerous Omicron variant of the virus in South Africa isn’t going to help matters. We can expect the state of emergency to continue for a while longer.

Legislators, understandably, are getting perturbed that they are being left out, and will be introducing measures to give the Legislature a veto power over all or a part of an emergency proclamation.

The Governor, on the other hand, says that Hawaii is doing better than most states because of the emergency powers he has wielded. “I would say this: Virtually every single state that tied the governor’s hands has regretted it,” Ige is quoted as saying.

State law (section 127A-27, HRS) already gives the judiciary the power to review emergency proclamations in an expedited manner. But to get the judiciary involved normally requires a person bringing the suit that has been injured in some manner by the proclamation..

Some of the earlier proclamations in the COVID series, as we have written about before, were questionable in that they suspended entire chapters of the Hawaii Revised Statutes, such as the Sunshine Law, Uniform Information Practices Act, or the Collective Bargaining Law, where the emergency only seemed to require nudging some of the laws rather than wiping them out entirely. Fortunately, many of those wholesale suspensions have been lifted. One of the suspensions simply shut off the flow of transient accommodations tax revenue to the counties altogether, and legitimately raised the question of whether the suspension was more harmful than helpful – after all, the local governments are supposed to be better poised to deliver emergency services, and they have the traditional first responders (police, fire, ambulance).

For these reasons, we welcome the efforts by the Legislature to bring some reason and sanity back into the process of governing. “No man is an island,” wrote John Donne. This includes when the man is the Governor of Hawaii.