On March 20, 2023, Gov. Josh Green unceremoniously issued a third emergency Proclamation Relating to Homelessness. As with the first and second emergency proclamations, the most recent iteration suspends certain laws “to the extent necessary to expedite” the development of housing designed exclusively for “occupancy by persons experiencing homelessness or at risk of being homeless.”
While the ACLU of Hawai‘i appreciates the intent behind this string of emergency measures, from a civil and constitutional rights perspective, they set a dangerous precedent.
To be clear, the homelessness crisis is one of the most pressing issues in our state. Hawaii has one of the highest rates of homelessness in the United States, with Native Hawaiians and Pacific Islanders composing the largest group of unhoused residents. This situation is harmful to the health and well-being of both our housed and unhoused community members.
Growing the inventory of affordable housing was a key recommendation of the ACLU of Hawai‘i’s 2021 “Decriminalizing Houselessness in Hawai‘i” Report. The unilateral declaration of homelessness as a sudden “emergency” to justify the suspension of a broad swath of statutes and regulations, including several that protect important constitutional rights, ought to concern us all.
To make things worse, Green has signaled his intention of issuing other emergency proclamations to further his policy objectives, indicating an unjustified reliance on Hawaii’s emergency management law (HRS 127A).
This broad use of executive emergency powers raises serious separation-of-powers concerns. The overly vague language of these proclamations, in effect, would give the governor a blank check to override democratically enacted laws to address an “emergency” that has no clear end in sight.
Normalizing this continued practice sets a dangerous precedent for executive abuse in other contexts in the future. What would stop a future administration, with a less positive stance on civil rights, from suspending or infringing other fundamental rights? A future governor could, for example, declare a “crime crisis” and attempt to suspend due process rights.
There’s no end to this logic of using self-declared “emergencies” to short-circuit the regular process for enacting legislation. Reliance on emergency powers should always be narrow and limited. It cannot be the default tool our government uses to get things done.
The tendency to treat every difficult societal problem as an “emergency” that justifies ignoring democratic ground rules is an avoidable temptation. As a society, we should be thinking beyond an “emergency” mindset to address the root causes that force people to become unhoused.
While the lack of truly affordable housing is one of the biggest drivers of homelessness, we can’t ignore the root causes of housing insecurity — unemployment, income inequality, mental health, substance use, domestic violence, disability status, lack of education, and legacies of colonialism and racism.
Rather than focusing on the drivers of this crisis, public officials typically treat homelessness as a crime, tasking law enforcement with citing and arresting unhoused individuals at alarming rates, including using the harmful tactic of mass sweeps. As a result, far too many people experiencing homelessness have harmful interactions with the police rather than getting access to housing and other needed services. Reliance on police sweeps and interdiction tactics is costly, harmful, and counterproductive to efforts to reduce barriers and access to housing and to provide services that help individuals reach stability.
We applaud the efforts of Green in seeking to tackle such a difficult problem. He and his administration have a responsibility to narrow and limit the scope of this and future proclamations.
Lawmakers have avoided addressing these challenges for too long, leading to the governor’s actions. They have a responsibility to pass legislation that not only facilitates the building of truly affordable housing, but prioritizes funding for wraparound services that address the root causes of homelessness, including essential health, treatment, education and job services that create pathways for more sustainable solutions to this crisis.
Scott Greenwood is executive director of ACLU of Hawai‘i.
