The hidden problem with emergency powers

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

Hawaii’s emergency management law has some critical flaws.

Namely, what constitutes an emergency is up to just one person — the governor — who also has wide latitude to address those declared emergencies by indefinitely suspending whatever laws he or she thinks are getting in the state’s way of responding to them.

The COVID-19 lockdowns highlighted this problem. But it has become even more apparent as we have seen an expanded use of emergency proclamations to address issues such as homelessness, housing affordability, even the overpopulation of axis deer in Maui County.

It doesn’t matter whether one agrees with the governor’s orders. The problem is that using emergency proclamations to bypass the legislative process — and being able to renew them indefinitely — undermines the constitutional authority of the Legislature, which is supposed to be the voice of the people. 

Moreover, the Hawaii Supreme Court has declined to denounce this expansive definition of “emergency” because of how the state’s emergency management law is written. 

So, in order to reign in the governor’s power to declare and extend emergencies, the Legislature needs to act.

Fortunately, there are bills still alive this session that propose much-needed reforms. 

In particular, HB2581 would redefine “emergency” in state law, with an emphasis on situations that can cause immediate danger and require timely action. A similar bill made it through both the House and Senate last year, but the details were never hashed out in conference committee, so it died.

Then there’s SB2151 and its House companion bill, HB2236, which would allow the Legislature and county councils to end declared states of emergency by vote. 

Those two bills also would prohibit the governor or any mayor from suspending open records laws during emergencies. 

The latter concern arose in 2020 at the outset of the COVID-19 crisis, when then-Gov. David Ige suspended Hawaii’s open-records rules — an extreme action that wasn’t taken by any other state governor.

The state Office of Information Practices, which is responsible for responding to public records requests, hasn’t taken a position on the merits of SB2151 or HB2236, but it did say in written testimony that the two-and-a-half-month suspension of Hawaii’s Uniform Information Practices Act in 2020 — and the subsequent, more-than-yearlong partial suspension of response deadlines — led to many parties experiencing “long delays” in receiving responses to their records requests. 

In other words, according to the OIP, the law during that time “did not fulfill its stated purpose of giving the public timely access to government records.”

The bills now being considered by the Legislature to rectify these abuses aren’t perfect, but they would significantly improve the situation by limiting one person’s expansive authority to declare and extend emergencies.

Establishing legislative oversight over those decisions would be a huge benefit for “we the people,” and I hope our 76-member Legislature agrees that such balancing of powers is needed.

E hana kākou! (Lets work together!)