Most of the debate on House Bill 1286, introduced by House Speaker Scott Saiki, has focused on how the bill would force Kauai County to abandon a policy that has produced the lowest COVID incidence in the state.
It has been demonstrated by science, data on Maui, data on Kauai and recommendations from the U.S. Centers for Disease Control and Prevention that the state’s one-test plan is not safe. It is, in fact, allowing the virus and its variants to enter Hawaii in significant numbers via infected visitors and returning residents.
There is, however, another critical aspect of the bill that could have untold consequences in the state’s emergency response to the pandemic.
HB 1286 would preempt the emergency management powers of the governor and the four mayors as to the COVID travel policy of the state. HB 1286 codifies the state’s one-test travel policy into law, which then can only be changed by the state Legislature and its legislative process.
An emergency, by definition, “is a serious, unexpected, and often dangerous situation requiring immediate action.” It requires quick, decisive and informed responses that cannot wait.
Emergencies also require the ability to pivot as realities quickly shift. As we have all experienced, new realities emerge unexpectedly and constantly in a global pandemic.
There is no way that a part-time Legislature — with two houses, 76 legislators and a process of committee referrals — will be able to make emergency response decisions effectively.
Certainly, the military community, whose work is often geared to emergency response, will understand what a ludicrous decision- making process it would be to have a “76-person committee,” making emergency decisions.
One wonders how major corporate leaders in Hawaii would feel if asked to yield their emergency decision-making authority to a legislative process.
Consider this possible scenario: HB 1286 passes and all counties are bound to follow the state’s one-test plan. The Hawaii Legislature adjourns on April 29. By mid-May, as the number of incoming travelers to Maui approaches pre-COVID levels, the vaccine-resistant and more contagious B.1.351 South Africa variant, recently found on Oahu, takes hold on Maui. It starts to spread, even though Maui has vaccinated 50% of its population by then. Maui’s COVID numbers do not go down, but persist because visitors and returning residents keep bringing the virus in. Interisland spread grows. Maui Memorial’s hospital beds start filling up. Public health experts recommend a host of changes to the state’s one-test plan, but without the Legislature in session, no change is possible.
Will the Legislature call an emergency session to amend the law? Will it hold hearings while people are dying and the variant starts spreading to the other counties?
The emergency response power must be an executive power because the nature of an emergency response demands quick, decisive action — and the ability to pivot rapidly as the circumstances change. By vote of the people, the governor and the mayors have been vested with the executive power; the power should remain in their hands.
HB 1286 is an ill-conceived effort to substitute the Legislature’s judgment for decisions that are rightly and better made by the governor and the mayors. In designating the Legislature to make key emergency management decisions, HB 1286 is proposing a thoroughly unworkable decision-making framework. It should be killed.
JoAnn A. Yukimura is a former Kauai mayor and Councilmember; James Raymond is a retired Hawaii attorney general; Chad K. Taniguchi is an advocate for safe streets and communities. For more information, contact Yukimura at firstname.lastname@example.org.