The Hawaii Legislature has several bills to amend the statute governing emergency powers. The first scheduled for hearing was Senate Bill 3089, which takes the completely wrong approach by weakening, rather than protecting, the people’s political power.
While emergencies can require drastic action, such action must be limited to that period of time absolutely necessary to protect against infringement on our fundamental rights. I agree that the statute, Chapter 127A, must be amended to ensure that emergency powers are not abused. However, in order to protect the proper balance between the political power of government and the citizens, a constitutional amendment is the better answer.
This is because when judges interpret a statute, they must look at the context of the entire chapter in which it occurs. In this case, Chapter 127A broadly empowers the governor and mayors to take over the legislative lawmaking powers when in their sole opinion some emergency or disaster leads them to the conclusion that it is desirable. In that context, the tension is between the political power of the executive versus the legislative branch. The political power of the people is lost. The legislation needs to allow judges to see the tension between the government and the people in Chapter 127A because the emergency orders affect each person, not the Legislature.
The people of Hawaii have constitutionally protected political power, and limits on emergency powers is an important protection for citizens. The Bill of Rights in the Hawaii Constitution provides at Article I, Section 1 that: “All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.”
Therefore, allowing an unchecked exercise of emergency powers with no citizen input is contrary to the constitutional protection of the citizen’s inherent political power. Tinkering with the language of the emergency powers within the context of that whole chapter, leaves the judge to determine the meaning of a section of that chapter without the context of the citizen’s political power. In that context, the tension between the political power of the executive versus the people is lost. Judges need to see the tension as between the government and the people.
In order to arm judges with the proper perspective for reviewing abuse of emergency powers, the brakes on abuse of emergency powers must be stated where the judge will see the tension properly: between the political power of the people and the political power of the government.
Therefore, I suggest that we change all the emergency powers bills currently in the process and instead amend the Hawaii Constitution in order to reiterate the current 60-day limit on emergency powers in the strongest possible terms. The following amendment to the Hawaii Constitution is proposed (the proposed new language is in bold below):
Article I Section 1 shall be amended as follows: Section 1. All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority. Any exercise of emergency powers must automatically terminate on the 60th day after the initiation of the first action pursuant to emergency power unless both the executive and legislative branches act to extend the emergency powers for that specific emergency.
Let the citizens of Hawaii take over the decision-making on emergency powers since it is the citizens individually that suffer under the orders issued by the governor and mayors under that power. Let the people vote!
James Hochberg is an attorney practicing in Honolulu.
