Don't let emergency orders become the norm

by Keli'i Akina, Ph.D., President / CEO, Grassroot Institute of Hawaii

Gov. Josh Green promised strong action to address housing during his first State of the State address this week, and clearly he is trying to deliver. 

At one point during his speech, he even signed an emergency proclamation to create housing for the homeless.

Few would argue with the good intentions behind that order. In an effort to cut red tape and get housing built as soon as possible, the governor suspended a series of laws that might hinder that goal. 

I appreciate the governor’s passion for this issue and agree that homelessness is a high priority for our state. I also agree that bureaucracy and red tape have become a major barrier to affordable housing in Hawaii.

But as much as I agree with the governor’s ideas, I cannot fully endorse the method. The emergency proclamation intended to address homelessness might be efficient, but it suffers from the same defect as most emergency orders: It sidesteps the democratic process.

This is the lesson we learned from the COVID-19 crisis. The emergency powers of the governor were intended for situations in which there is an imminent threat to life and health, when there isn’t time for the deliberative action that generally characterizes democratic government.

Because rule by emergency proclamation effectively cuts out the people’s voice via the legislative process, it was also intended to be temporary. Once the imminent danger has passed, the legislative check on executive power must be restored as soon as possible.

Gov. Green witnessed how his predecessor repeatedly invoked the power and convenience of emergency orders during the pandemic, so perhaps it’s no surprise that he has turned to that mechanism to deal with a difficult issue. 

But however well-intentioned his homelessness order might be, it is a Band-Aid approach where more long-term solutions are called for.

Taken at face value, most of the governor’s homelessness order was good. It waived bureaucratic barriers that have frustrated efforts to create shelters for the homeless. 

However, the governor also waived transparency and procurement laws that are intended to promote accountability. It’s hard to see how these laws were a real obstacle to helping the homeless. 

It seems as though the point of the homelessness order is simply to suspend contracting, procurement and land-use laws just long enough to secure the contracts and approvals needed for this homelessness program. The order specifically states that the agreements created during the duration of the emergency will be honored even after the emergency ends. 

Once again, that is an admirable level of efficiency. But I worry that the Legislature may learn the wrong lesson from this order. 

If good governance is being held up by red tape, the answer is not to use an emergency proclamation to get around those regulations. The answer is to get rid of the red tape.

An emergency proclamation isn’t supposed to be a “Get out of regulations free” card, to be employed as a relief valve on a vital issue. 

It should not be used to absolve Hawaii lawmakers of their responsibility to respond to critical policy issues with reasoned action.

It also comes uncomfortably close to the return of one-man rule, which I had hoped was finally over. Like it or not, the public has a right to weigh in on the governor’s homelessness reforms, and this order short-circuits that process.

The Legislature should take the governor’s homelessness order as a call to action — not just to revisit the boundaries of emergency power, but also to look at the regulatory barriers that have frustrated efforts to address homelessness. 

My hope is that we can all work together to find a more permanent and democratic solution to the problem.

E hana kākou! (Let’s work together!)