There hasn’t been an emergency like a pandemic since the last one a century ago, and no real occasion before to evaluate how such a crisis should be managed.
Is the emergency power, now allowing the governor to use executive authority to implement COVID-19 responses, being exercised properly? The Legislature is confronting this question in the current session, and now must take the opportunity to develop a rational answer.
There are multiple bills that have been introduced that propose checks on the governor’s emergency powers, but only House Bill 1585 has been heard so far. The Committee on Pandemic and Disaster Preparedness took testimony Feb. 1. It has moved along with minor amendments, passing second reading.
On balance, the constraints proposed by the measure make sense, primarily by authorizing the state Legislature to limit the length of a state of emergency by a two-thirds vote in both houses.
It’s early in the process, though, leaving a lot of time to consider ideas practiced in other states — and there are many — or to work in approaches from other bills. HB 1585 now awaits another hearing before the Judiciary and Hawaiian Affairs Committee.
States have constitutional and statutory provisions that give the governor authority to declare a state of emergency. What makes Hawaii unusual is the lack of any real curbs on the process.
Hawaii Revised Statutes Chapter 127A-14 puts this power in the hands of the executive branch, stating 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 in the state or a local state of emergency in the county.”
Under the law, the state of emergency terminates 60 days after the proclamation — but there are no clear rules governing an extension.
HB 1585 spells out various terms in the state law, including what constitutes a “severe weather warning” signaling a weather emergency and, importantly, requiring that any suspension of laws that tend to impede emergency functions be justified. The governor or mayor proclaiming the emergency must show that the suspension is necessary for “protecting the public health, safety and welfare.”
Basing a suspension on this criterion is a principle also included in House Bill 1416, and it’s a critical one. For example, the requirement for in-person public meetings under the Sunshine Law is still suspended, and the public-records law was held in abeyance until Aug. 6. There’s been no mandate to justify these actions, and there should have been.
If this bill is enacted, the Legislature could terminate a state of emergency, “in whole or in part.” It is healthy to have this option in place with a bar set at this high level. It should not be easy for lawmakers to short-circuit emergency powers of the executive, but it should be possible.
In addition, the law would make it clear that the governor could require mayors to seek gubernatorial clearance or approval by the emergency management agency director before issuing any emergency orders. This could avoid some of the state-county inconsistencies seen over the COVID-19 pandemic.
As the bill progresses, as it should, lawmakers could consider mandating legislative review of any emergency order beyond the fourth one, a proposal in House Bill 1921. Yes, the 21 proclamations Gov. David Ige issued are a lot, but it’s hard to see how setting a firm limit such as this one would be workable.
Emergencies vary widely, but they have one thing in common: They are unexpected, and unpredictable. COVID-19 taught us that, and the governor does need some leeway — within reason, for overall health and safety — to respond to their twists and turns.