Why State Emergency Powers Reform Failed
August 2, 2021: Hawaii Together with Keli'i Akina
Hear What Lawmakers Had to Say with guests Melissa Newsham and Malia Hill.
As Hawaii’s 2021 legislative session came to a close on April 29, many Hawaii residents were disappointed by the failure of the Legislature to approve HB103, which would have placed limits on the governor’s emergency powers.
In this episode of Keli‘i Akina’s “Hawaii Together” program, Melissa Newsham of the Grassroot Institute of Hawaii shares the results of her research into why the bill failed at the last minute to make it to the governor’s desk, despite widespread support from individuals and public interest groups worried about our civil liberties and accountable government.
In addition, Malia Hill, institute policy director Malia Hill, discusses specifically how the defeated measure would have helped rein in the governor’s unchecked executive power, which he invoked in March 2020, has included severe economic and social lockdown measures, and so far has no official end in sight.
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Why reform of Hawaii’s emergency powers law failed
by Melissa Newsham, Grassroot Institute, July 19, 2021
As Hawaii’s 2021 legislative session came to a close on April 29, many Hawaii residents were disappointed by the failure of the Legislature to approve HB103, which would have placed limits on the governor’s emergency powers.1
Hawaii has been under a state of emergency since March 2020, when Gov. David Ige issued his first emergency proclamation in response to the perceived threat of COVID-19. Since then, he has issued 20 more emergency declarations, and he’s possibly not done yet.2
The main complaint about the governor’s emergency powers is that there is no recourse if he ignores the law’s plain language that limits emergency periods to 60 days. There also is nothing in the law that explicitly allows for so-called supplemental emergency proclamations, by which Ige has been extending the emergency indefinitely.
HB103 would have established checks to the governor’s power and provided parameters regarding the suspension of laws under an emergency, as is the case already in many other states.3 Among other changes, it would have required the governor to obtain legislative approval via concurrent resolution before issuing any supplemental emergency proclamations.
The bill also would have required the governor to justify the suspension of certain laws during an emergency, including Hawaii’s collective bargaining laws and the state’s open-records and open-meetings laws, which the governor suspended in his first supplemental emergency proclamation, on March 16, 2020.4
As it stands, Hawaii’s emergency powers law grants the governor sole authority to judge whether there is an emergency. According to Section 127A-14(a) of the Hawaii Revised Statutes,5 “The governor may declare the existence of a state of emergency in the State by proclamation if the governor finds that an emergency or disaster has occurred or that there is imminent danger or threat of an emergency or disaster in any portion of the State.”6
The emergency powers of Hawaii’s four mayors are derived from that same statute, in consultation with and permission from the governor.
Reform of the state’s emergency powers law was supported by a wide range of public interest groups, including Common Cause Hawaii, the Civil Beat Law Center, the Grassroot Institute of Hawaii, the State of Hawaii Organization of Police Officers, the Maui Chamber of Commerce and the Hawaii Government Employees Association.7
“It is contrary to our democracy for any one individual to have unilateral authority to suspend laws indefinitely without a mechanism for public input and review,” said Randy Perreira, HGEA executive director, in testimony to the Senate Judiciary and Ways and Means committees in February.8
The Ige administration, however, opposed the bill. The state Emergency Management Agency argued in its testimony that the proposed amendments to the current emergency statutes “would severely limit the governor’s duties and legal obligations to provide for the public health, safety, and welfare.”9
Nevertheless, supporters of the bill were optimistic that it would pass, and, indeed, it moved steadily through the legislative process, and was even approved 23 to 2 by the Senate before being referred to a conference committee, where differences between the House and Senate versions could be worked out. But it was in that committee, with the Legislature on the cusp of adjourning, where it eventually died.
So what happened?
It appears the major sticking point was disagreement over the ease with which the governor can extend or renew an emergency.
House Speaker Scott Saiki, D-District 26, told Honolulu Civil Beat in May that, “When the bill came out of conference committee, we realized that it did propose a 60-day time limit for an emergency proclamation, but it left out a really important point, which was whether or not the governor would have the ability to extend or renew a proclamation after it had met the 60-day expiration deadline.”10
Rep. Linda Ichiyama, D-District 32, a member of the House conference committee, said in an email exchange that, “One of the biggest challenges with this issue is that HRS Chapter 127A (and the governor’s emergency powers section) applies not only to this pandemic but also to other disaster situations, such as volcanic eruptions, floods, hurricanes, etc., where [the] governor may need to be able to extend an emergency declaration.
“Any changes to the statute must take all of those situations into consideration,” she said, “so we do not jeopardize that process, especially when federal funding may depend on a declared state of emergency.”11
But prior to moving to the conference committee, the bill did, in fact, provide a pathway for the governor to extend emergency proclamations. All he would have needed under HB103 HD1 SD2 was for the Legislature to support it through the adoption of a concurrent resolution.12
The pathway, however, also would have required the governor to make a request to the Legislature at least 12 days before the expiration of the proclamation to extend the state of emergency.
According to Sen. Sharon Moriwaki, D-District 12, who chaired the Senate conference committee, the bill failed to pass because of disagreement over this specific provision.
“When we went to conference, the House came back and said we probably just don’t need the 12 days because it seems like a lot to ask [of the governor], and deleted that provision,” Moriwaki said in a phone interview.
So it wasn’t exactly the case that the Legislature “realized” after the bill came out of conference that there wasn’t a clear pathway for the governor to extend or renew a proclamation. Instead, it appears that the pathway was deliberately deleted in the conference committee because some of the committee members didn’t like how it was structured.
For example, Sen. Donna Mercado Kim, D-District 14, said she opposed the bill because, “It’s really difficult to get the body of 25 in the Senate and 51 in the House together when we’re not in session and there is an emergency, and to then have to get an agreement by all of us.”13
Moriwaki said that, “When the Attorney General’s Office looked at the finalized version of the bill without the 12-day provision, they provided comments that they would not accept the deletion because there would be no pathway for the governor to extend the proclamation if there were exigent circumstances.”14
She said the Office of the Attorney General provided alternative language to address the issue, but “it was really late in the process. I think it was the day before [the] concluding session that we were given the option of putting in the language that the AG wanted, and we couldn’t agree on that, so the bill died.”
Asked about Moriwaki’s account, Deputy Attorney General Jill T. Nagamine said she was “not aware of who from our office might have communicated with Senator Moriwaki off the record on this issue.”15
In any case, the bill’s failure to pass was a blow to anyone in Hawaii concerned about civil liberties and the abuse of government power, and now it appears Hawaii citizens will have to wait at least until next year for another chance to achieve reform.
The good news, perhaps, is that any reform proposals can be refined before the next legislative session to ensure a better balance between the executive’s emergency powers, civil liberties and government accountability — and thus a better chance of success.
Rep. Scott Nishimoto, D-District 21, who introduced HB103, did not respond to requests for comment. The governor’s office also declined to comment, on the basis that the bill is dead.16
But Rep. Ichiyama and Sens. Moriwaki and Kim all expressed willingness to revisit the topic in the next legislative session and help resolve the roadblock issues.