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Wednesday, March 24, 2021
What are the Limits to Hawaii Governors' Emergency Powers?
By Robert Thomas @ 10:51 PM :: 720 Views :: Hawaii State Government, COVID-19

Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43 U. Haw. L. Rev. 71 (2020)

by Robert Thomas, InverseCondemnation, March 24, 2021

Not our usual takings fare, but our readers are pretty forgiving about our occasional sidebars. And this one is otherwise relevant if you are wondering how governors and other executive state and municipal officials have the power to do things in events deemed to be emergencies. 

So here's the final, as-published version of the law review article we wrote up on Hawaii's emergency powers and suggestions for making the statute less bad, Hoist The Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43 U. Hawaii L. Rev. 71 (2020). 

From the Intro:

Even though legal challenges to similar emergency restrictions have developed in other jurisdictions, Hawai‘i’s courts have not dealt with many objections to the governor’s exercise of these emergency powers. Perhaps because it is mostly predictable how a court would analyze a challenge to emergency powers under the U.S. Constitution. The leading U.S. Supreme Court case about the power of government to protect the public health, Jacobson v. Massachusetts, upheld the state’s vaccine requirement, concluding that a person’s liberty could be limited by reasonable regulations designed to protect “the safety of the public.” The Court based its reasoning on public “self-defense,” noting that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Even though the power cannot be exercised in “an arbitrary, unreasonable manner.” Jacobson affirmed the very low floor for most constitutional challenges to exercises of police power generally, and exercises of such power in emergencies specifically.

In this article I examine whether Hawai‘i law might compel a different analysis. Most state emergency power statutes, like Hawai‘i’s, contain internal limitations on delegated emergency power. I argue that Hawai‘i’s statute contains a single major check on the executive’s delegated authority: the “automatic termination” provision, under which an emergency proclamation terminates by law the sixtieth day after it was issued, or when the governor or mayor issues a “separate” proclamation, whichever comes first. This provision is an essential limitation on the power of the executive, with the only real question being whether that limitation will be enforced by the courts. Despite the statute’s clear limitation on power, I conclude that the circumstances in which a court would sustain a challenge to the governor’s or a mayor’s power as a matter of Hawai‘i law are very limited, and that the primary remedy which a court will likely recognize is a political one. It should not be so, however. Under existing precedents, there are at least two ways in which a court might analyze this limitation. This article examines the prominent narrative threads that have emerged from Hawai‘i’s judicial history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.

This brings me to the title of this article, and its reference to Spam® (the canned luncheon meat, not annoying unsolicited email) . When emergencies loom, Hawai‘i residents are known to stock up on essentials like toilet paper, rice, and Spam®. If the courts are reluctant to enforce the sole limitation on executive power in the statute, then all that is left is to stock up on Spam®, keep vigilant, and hold political officials accountable. This means identifying the shortcomings in the present law and clarifying the statute at the earliest possible opportunity. This is what the article ultimately proposes. The alternative is rule by indefinite executive decree as the COVID-19 emergency starkly illustrates, a result that Hawai‘i’s emergency response statute plainly rejects.

PDF: Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43...

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