The Hawaii Legislature is attempting to elucidate the extent of gubernatorial powers during a state of emergency with House Bill 522. Under current law, during a state of emergency, the governor maintains the power to suspend electronic media transmission. HB 522 considers how broad and vague the verbiage is in the current statutes and would remove this power from the governor during a state of emergency.
Electronic media transmission is a very inclusive term that could be interpreted to include all radio and television broadcasts and could also potentially include text messages and phone calls, emails, and access to social media platforms. Any elected official suspending access to such electronic transmissions presents an incredible threat to expression of free speech and violates the First Amendment.
House Bill 522 would still allow the governor a multitude of powers relating to emergency management during a state of emergency, however, the provision to protect electronic media transmission and free speech for Hawaiians is essential.
Reining in gubernatorial powers during a state of emergency and injecting the legislature and the people into the processes is the surefire way to ensure that the will and best interests of the people are preserved in spite of any emergency that may occur.
During the pandemic, many Americans saw their respective governors wield unprecedented power with seemingly unlimited emergency declarations. This overnight shift in governance, coupled with a plethora of governors who abused their pandemic emergency powers, has left several states reevaluating constitutional statutes pertaining to emergency provisions and powers granted to the governor during a state of emergency. With HB 522, Hawaii is no exception.
This change to the current Hawaii statute is paramount to prohibit Gov. Josh Green (D) and future governors from excessively extending state of emergency powers, as seen time and time again across the country during the COVID-19 pandemic.
Simply put, HB 522 would create commonsense restrictions and limitations on gubernatorial powers. Most importantly, it reintegrates the legislature into governance processes during states of emergency. It aligns with many of the principles developed by The Heartland Institute during the pandemic, which legislators can reference upon any gubernatorial abuses of power.
Some of these ideas and principles include:
- The ability to immediately nullify an emergency proclamation via resolution.
- The creation of time limitations for an emergency order, renewable by the legislature.
- The ability to pass a resolution that requires the governor to call a special session to approve of an emergency proclamation if the legislature is out of session.
- Permitting an interim committee or group of legislative leaders to extend or reject emergency proclamations.
- The imposition of specific limits to executive authority during an emergency proclamation (i.e., restrict the governor from unilaterally closing businesses, closing houses of worship, shutting down freedom of the press, or the right to bear arms).
There is a clear appetite among lawmakers and constituents to restrict gubernatorial overreach, especially after the coronavirus pandemic. Via this legislation, Hawaii lawmakers can catch up to their peers in other states who have already taken measures to rein in executive authority.
Co-equal governance, checks and balances, and the decentralization of power are bedrock principles of American democracy. Yet, these fundamental principles have been AWOL in many states since the pandemic.
Fortunately, lawmakers in the Aloha State are beginning to stand up to gubernatorial overreach by reasserting their rightful place as a much-needed check against the executive branch.
The following documents provide more information about executive authority in a state of emergency.
Testimony Before the Georgia House Judiciary Committee regarding legislative and executive authority in a state of emergency.
Gov. Cuomo has issued multiple statements in an attempt to quell the backlash and frustration of New Yorkers and lawmakers in Albany to no avail.
The Heartland Institute hosted a webinar on Aug. 27, 2020 for state legislators to discuss how they can rein in governors, who wield seemingly unlimited powers in the wake of COVID-19. For many months, Americans have been abhorred by out-of-control governors who have imposed draconian lockdowns, which have decimated small businesses and people’s livelihoods. For instance, Gov. Andrew Cuomo has been roundly criticized for his heavy-handed and ineffectual response to the coronavirus outbreak in New York, which has drawn substantial blowback. Cuomo has also attempted to coverup his disastrous policy of forcing elderly patients with COVID-19 to return to nursing homes, where they spread the deadly disease like wildfire among New York’s most vulnerable. As the days grow shorter and the temperatures dip lower, now is the time to begin exploring oversight over dictatorial governors and restore power where it rightfully belongs: With we the people, not I the governor.
Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.
The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartland’s Government Relations department, at [email protected] or 312/377-4000.