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Wednesday, June 24, 2020
Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic
By Robert Thomas @ 11:59 PM :: 904 Views :: COVID-19

Upcoming Judiciary History Center Program: "Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic" - Wed., June 17, 2020, 5:30pm HST

by Robert Thomas, InverseCondemnation, June 10, 2020  (see update below)

Next Wednesday, June 17, 2020, at 5:30pm Hawaii Time, we'll be speaking for the King Kamehameha V Judiciary History Center about "Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic."

This is a one-hour program, open to the public, where we will take a dive into Hawaii's emergency preparedness and response laws, how Hawaii's courts have treated emergencies, plagues, pandemics, and quarantines in the past (we have a long history there), and respond to (moderated) audience questions.

Space limited to 100 attendees, although it will be recorded and posted on the Center's YouTube channel. Here's the program description:

The King Kamehameha V Judiciary History Center invites you to join our live webinar with attorney Robert H. Thomas as he shares his expertise about constitutional rights and civil liberties during the COVID-19 pandemic. He will share lessons from Hawaiʻi’s history of public health laws during epidemics, as well as explain how courts in other jurisdictions are currently evaluating legal claims related to the Fifth Amendment.

The webinar will conclude with a live Q&A. Space is limited to 100 webinar attendees.

Register to learn about Robert's responses to popular questions that arose during quarantine, including:

  • Can government officials require me to wear a mask?
  • Can the police keep me from going to the beach?
  • Can Hawaiʻi treat residents and tourists differently?

To join the live webinar, please register using the sign-up button below. Or, visit our Youtube channel to view the program's live stream feed on June 17, 2020 at 5:30 pm. The webinar will be recorded and posted to our Youtube and Facebook pages.

Register here.

Hope you can join us.

PS - once the ongoing situation is over, when you have a chance, you really should pay an in-person visit to the Center's facility, which is on the first floor of Aliiolani Hale, directly underneath the Supreme Court's courtroom. There's a historic trial courtroom, and displays on Hawaii's legal history.

  *   *   *   *   *

Links And Materials From Judiciary History Center Program: Constitutional Law and States of Emergency: Lessons from Hawaii's Judicial History for the COVID-19 Pandemic

by Robert Thomas, InverseCondemnation, June 17, 2020

Here are the links and other materials which we spoke about in this afternoon's program for the King Kamehameha V Judiciary History Center, "Constitutional Law and States of Emergency: Lessons from Hawaii's Judicial History for the COVID-19 Pandemic."

SPAM®: Every Hawaii resident's Plan B

Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398, 425 (1934):

"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the states were not determined in the light of emergency and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system."

This is not a war: United States v. Pac. R.R., 120 U.S. 227 (1887): during the Civil War, the Union Army blew up railroad bridges "to prevent the advance of the enemy." No compensation because the destruction of the bridges was a "military necessity." "The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences."

The King v. Tong Lee, 4 Haw. 335 (Kingdom 1880) (en banco): Hawaii Supreme Court upholds restrictions on commercial laundries in Honolulu's Chinatown deferring to the government's assertion that doing so was necessary to preserve the public health. Over- or under- inclusiveness not a problem.

Gibson v. The Steamer Madras, 5 Haw. 109 (Kingdom 1884). "Quarantine" narrowly defined, and although ship was in a de facto quarantine (held offshore for health reasons, not allowed to land for two months), it did not qualify as "quarantine" as that term was defined in a Kingdom regulation that required ship owners to pay for the costs of quarantine.

Hawaii's emergency preparation and response statute

(Haw. Rev. Stat. §§ 127A-1 et seq.)

Section 127A-14(d), the "automatic termination" provision, which imposes a "pull date" on all declarations of emergency:

(d) A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first.

Two lawsuits have been filed in U.S. District Court challenging the governor's supplemental orders under the automatic termination provision (among other claims). See here and here for the complaints.

Many more legal challenges to coronavirus shut-down orders have been filed nationwide. Here is a sample of the cases: here, here, here, here, here, here, here, here, here, here, here, here and here.

The program was recorded, and we'll post that when available.

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