Sharing emergency powers: House bill would temper governor’s power

  • Robert Thomas

  • Luke Meyers

The prolonged coronavirus pandemic has state lawmakers rethinking emergency powers it granted the governor in a revamp of state law not that long ago.

A bill moving through the state House would try to balance the almost unilateral power granted the executive branch — governor and island mayors — during declared emergencies to allow legislative input into the duration and specific powers wielded.

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Current law in Hawaii, unlike most other states, according to research by the National Conference of State Legislatures, provides that the governor or mayor “shall be the sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency.”

Since March 4, Gov. David Ige has issued 18 emergency proclamations, with the most recent one inked Friday slated to expire April 13.

House Bill 103, tempering some of the governor’s power, cleared its second committee Thursday on a unanimous vote with no amendments. It now goes to the Finance Committee, its last stop. A similar bill in the Senate has yet to gain traction.

The bill requires that all emergency actions taken not be in violation of the state constitution, that no suspension of law be longer or broader than necessary and that a rational basis for the suspension be articulated in the emergency declaration.

In addition, it sets a 60-day limit for emergencies, with extensions requiring the Legislature to agree by a concurrent resolution. If the Legislature fails to act, the extension automatically goes into effect, under the current form of the bill.

Current law “gave the governor extraordinarily muscular powers,” said attorney Robert Thomas of Pacific Legal Foundation, a non-profit dedicated to protecting property rights and individual liberties, in a Friday webinar sponsored by the Grassroot Institute of Hawaii. “In this statute, the Legislature delegated its powers.”

Rewriting law to try to get some of those checks and balances back is easier than trying to prevail in court over emergency proclamations, said Malia Hill, a Grassroot Institute attorney. Courts tend to grant great deference to the executive branch during emergencies, and cases are likely to drag on for years, she said.

“The real concern is the governor acting as a super legislator,” she said. “House Bill 103 is the start of something good. … It’s generally a step in the right direction.”

The Hawaii Emergency Management Agency opposes the changes, saying there will be enough time to evaluate what worked and what didn’t after the emergency, or “incident” as it’s called in HI-EMA vernacular, has passed.

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“Through best practices, we would be waiting until the incident is over before we make any changes,” HI-EMA Administrator Luke Meyers said. “As seen in any emergency, an emergency can be quite fluid. … We believe it limits the authority of the governor during an emergency.”

Meyers said the agency will tackle recommendations in an improvement plan that typically follows an after-action report once the emergency has passed. He said his agency is currently working on an interim first nine-month report “that we will be sharing.”

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