Governor comes through on ‘gut and replace’ but disappoints on emergency powers reform

Gov. Ige vetoed HB1147, which the Legislature approved via an illegal practice, but also vetoed SB3089, which was a setback for liberty

News Release from Grassroot Institute of Hawaii, July 14, 2022

HONOLULU, July 13, 2022 >> Gov. David Ige vetoed SB3089 and HB1147 yesterday, earning both applause and disapproval from the Grassroot Institute of Hawaii.

>> SB3089 — Relating to emergency management

On the downside was the governor’s veto of SB3089, which would have updated the state’s emergency powers law. The institute had supported that measure, which was two years in the making and approved by an overwhelming majority in both the House and Senate.

Said Institute President and CEO Keli‘i Akina:

“It is disappointing to see that Gov. Ige did not heed the voice of the people or the lessons of the coronavirus lockdowns in his veto of SB3089. This bill would have introduced much-needed reform to the state’s emergency-management statute, which was never envisioned as a long-term health emergency like COVID-19.

“Because of the governor’s unwillingness to restore the constitutional balance of power, we still live under the threat of endless emergencies and unchecked executive power.

“Unfortunately, the Legislature is not planning to call a special session to override this veto. But the Grassroot Institute will continue to push for these much-needed reforms to ensure that the people of Hawaii have a voice in future emergencies.

“We hope the Legislature will come to understand the importance of this issue over the coming year and pass an even stronger reform bill in 2023, overriding any veto if necessary.”

In particular, SB3089 would have:

>> Allowed the Legislature to end an emergency by a two-thirds vote.

>> Clarified that the governor’s emergency powers shall not be inconsistent with the Hawaii Constitution.

>> Required justification for the suspension of laws by emergency proclamation.

In addition, it would have addressed the confusion over the current statute’s automatic-termination provision, clarifying how the governor may extend or re-declare an emergency.

The governor said the bill was “objectionable” because “a premature termination of a state of emergency will create an impossible situation where county mayors will have to rely on their limited emergency powers to respond to an emergency without state assistance. The latter situation, if allowed, could jeopardize federal assistance.”

He also said that “limiting the governor’s ability to determine the duration of a state of emergency or disaster within the state” would “severely interfere with the governor’s duties and legal obligations to provide for the public, health and safety.”

The Grassroot Institute had explained that these objections were mistaken, since the bill provides leeway for those concerns to be addressed.

>> HB1147 — Relating to the state budget

Earning applause from the institute was Ige’s veto of HB1147, a measure that relied on the unconstitutional practice of “gut and replace” to secure funding for the Hawaii Tourism Authority.

Ige said the bill was objectionable because, “pursuant to League of Women Voters of Honolulu v. State … (2021), it suffers from a germaness problem, as the bill has been changed substantially from its original form to its final form in Conference Draft 1.”

Said Akina about the governor’s decision:

“I commend the governor for following through on his intent to veto HB1147, considering the Legislature approved the measure via the unconstitutional practice of ‘gut and replace.'”

“Gov. Ige was absolutely right that the bill was vulnerable to a court challenge, and all of Hawaii can be happy now that no tax dollars are going to be wasted defending it.

“I hope this will be the end of legislators using gut-and-replace to get their way. That they tried to use it this time was really beyond the pale, especially since it was only last November that the state Supreme Court ruled against it. The public has a right to comment on pending legislation, and gut-and-replace violates that right.

“As for funding the Hawaii Tourism Authority, the governor has said he intends to use money from the federal American Rescue Plan to fund the agency, though the institute would be quite happy if the agency were to be weaned from government subsidies. Hawaii’s tourism industry is more than capable of paying for its own promotion; we don’t need to be using scarce state resources to fund this or any other private business.

“But again, the key point is he vetoed the bill on its legal merits, and for that, he deserves praise.”