Another Emergency Proclamation for … Insurance

by Tom Yamachika, President, Tax Foundation Hawaii

Recently in the news, we’ve seen that we in Hawaii are facing another crisis.  If you live in a condominium, you may be having a huge problem because fewer (if any) insurance companies are willing to insure your building.  Maybe it’s because of recent events like wildfires.  Maybe it’s the fear of natural disasters caused by climate change.  Whatever the reason, it’s a big problem for those who want to buy or sell condo units. If you can’t get insurance on the unit, you can’t get financing.  Which messes up the market for housing even more than it already is.

To find and suggest solutions to this problem that could be implemented by legislation, a task force, with legislators including members of the House and Senate, the insurance commissioner, and others, was convened. They came up with some recommendations and put them into a bill that can be introduced next session.

But the task force then went one step further.  To ensure the speedy implementation of their recommendations, they asked the governor to issue an emergency proclamation suspending certain laws.  And the Governor did so.

 Certainly, the “condo insurance crisis“ is a matter of concern for several people, but is it really an emergency justifying the suspension of our duly enacted laws?

Our emergency management law defines an “emergency” as “any occurrence, or imminent threat thereof, which results or may likely result in substantial injury or harm to the population or substantial damage to or loss of property or substantial damage to or loss of the environment.”  The law also says that the governor is the sole judge of whether a danger or threat is an emergency. But it seems to me that this is bending the law quite a bit.  After all, insurance is supposed to protect people from emergencies like storms or fire or floods.  Insurance, or the unavailability of it, isn’t supposed to be an emergency by itself, right?

In authoritarian countries, the dictator can make whatever laws he wants and suspend whatever laws he wants.  In the United States and here in Hawaii, we are supposed to have separation of powers, which means that one institution (the legislature) makes the laws, another one (the executive branch, headed by the governor) enforces them,  and yet a third (the judiciary) interprets those laws and make sure that they are within the constitutional limits that were given to the government by the people. An emergency management statute that permits the executive branch to suspend any law for whatever might be considered an emergency, without limits, makes it possible for our government to look and feel authoritarian.

To prevent the possibility of turning our government into a dictatorship, we need to enact reasonable limits on emergency powers that can’t easily be evaded. When the COVID-19 pandemic hit, for example, the sixty-day limit on the length of a proclaimed state of emergency was ineffective because the Governor kept issuing emergency proclamations in a chained fashion.  Just before Proclamation #6 was about to end, for example, along comes Proclamation #7 with much of the same material cut and pasted from Proclamation #6.  The chain went on for over 20 proclamations.  At a minimum, the Legislature should have the power to cut the chain, by concurrent resolution perhaps, to give policymaking control back to the Legislature where it belongs. There also need to be understandable and enforceable limits on what an emergency is and what kind of laws can be swept aside.