 Yeah, talking tax with Tom Yamachika. I'm Jay Fidel. This is Think Tech. We're going to talk about ending government by fiat this morning, namely the emergency proclamations that David E. Gay has issued again and again and again during our time together in COVID. Welcome to the show, Tom. Welcome, Jay. Glad to be here. I want to tell you a story and then you can work off that. So yesterday I was on the line in Longs at the pharmacy counter and I thought I'd chat the guy up who is behind me in line. I noticed that he had his mask. He had a mask because you can't get in without a mask, but he had his mask down way down and nobody, nobody really noticed that and he was walking around Longs without, without, really without a mask. So I said to him, you know, my, my, my concern about the attempt to link vaccination funding to continuing the government, which has been threatened, which was threatened yesterday. And it launched him off into a kind of tirade. He said, you know, I'm here to get my, my COVID vaccination, but I don't want to. I don't think I have to. It should be voluntary. And it's involuntary because I'm taking a flight and they're making me come down here and take my vaccination shot. And otherwise I would not do that. If it was voluntary, truly voluntary, I would not do that. And I looked at him. I looked at the mask all slipped down on his face. He was only a few feet away and I could do nothing else but turn around and I turned around and I disengaged the conversation. That suffice to say that was somebody in that store getting a shot, getting a vaccine, who was so angry he could not hold himself. And it struck me, and this is a central point for our discussion today that he probably had no clue about Omicron. He probably had no clue about the numbers. He probably had no clue about the people he could be infecting in the store because he was not vaccinated at all, walking around with half a mask and in other places. So, you know, my, my reaction as I turn my back on him was, gee whiz, this is not good. And this happens right here at home. So, my question to you about David E. Gay and his proclamations, if there were legal issues before time, if David E. Gay was exceeding the boundaries of what would be an appropriate proclamation, an emergency proclamation, the boundaries of extending and renewing that proclamation for two years now, doesn't that change now with Omicron? Well, here's the thing. We have now had about a year and a half of caned emergency proclamations. Emergency proclamations are supposed to last only 60 days. Okay, but if on the 59th day the governor says, well, we still have an emergency, then he can make another emergency proclamation and then we start the clock over. So, this has been done again and again and again. We've gotten, we got to the 21st emergency proclamation related to the COVID-19 emergency in June. And then I guess they thought that 21 was a good enough number. So, the next proclamation of the series was titled something else. It was the emergency proclamation related to the state's COVID-19 Delta response. And they can start the numbering over again. So, you and I don't have to realize that this is the 22nd or more in a series of chained emergency events. Okay. Now, that I think raises some questions in and of itself as to whether the emergency power statutes are being used for the purposes indicated or if something else is really a better answer for this. But I mean, and kind of gets back to the situation that you experienced is I think another a related issue. And that is, okay, so if we have an emergency, does society have the right to abridge your freedoms, whatever you think freedoms are. And I think the answer is, well, yes, to an extent. Because, yes, you don't want this person with the mask half off infecting everybody in the store. And that's precisely what happened when tuberculosis was going around several years ago. And, you know, they, they put in several public health restrictions, including some that last to this day. So I mean, if you are a student and you want to enroll in our elementary schools or in the University of Hawaii, you got to present a TB test, showing that you're negative or that you've been vaccinated against TB, I think, or both. And those have been challenged before and they've been held constitution. Okay. But what what I have a problem with is when you suspend, you know, entire chapters of the Hawaii Revised Statutes, let's break that down, you know, we have, you and I have talked about that before. And so I think there's two, there's two things on the table here. See if you agree with me. One is those kinds of things having direct connection with COVID and with the welfare of others and the community and the economy, for that matter. Okay. Those things where you say to yourself, gee, if the governor doesn't do this, we are, we are going to have more cases, more deaths and the economy will be undermined and whether people realize it or not, they and their families will be adversely affected directly or sometimes indirectly. Okay. That's one category of proclamation statements on the table. The other category is the category that you and I have talked about before, which you just referred to, where David Igay has said, look, let us knock out this chapter. We're going to suspend the whole chapter. And that's harder to understand, isn't it? So if I were, if I were questioning the law as he interprets it, I would certainly go for that second category. I said, what are you doing? You know, we didn't, we didn't adopt that chapter lightly. It's been in the law for 20, 30 years, whatever it's been, and it helps us run, you know, the state. I make a distinction. Do you make a distinction? Oh, there's, there's definitely a distinction. And even the law makes for a distinction. I mean, the law empowers the governor to suspend any law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of or to conflict with emergency functions. Okay, so like for example, if, if you need doctors in the state more than, more than we have, and then, you know, some somebody from the Department of Health, you know, kind of raises his hand and says, well, these doctors aren't licensed in our state. The governor has, I think, every right to say, well, you know, heck with that, we need them here. We need them to help, you know, care for the people who are sick because of this emergency. And that I can, I can, I can entirely understand. Okay. But when, when the governor comes up and says, okay, we are going to shut off the pipeline of money to the counties, which is something that he did, I think in, in May of 2020. Well, what does that have to do with emergency functions? That's hard to find a connection there. Yeah, it's very, very hard. So what would he say? What would he say, Tom, if he were here with us today, and we, and we put that to him, so why don't you do that, cut off the funding for the counties, they need the money they're entitled, you know, under the law as it existed before you did this proclamation. What's your reason for doing that? Would he have any reason at all? I think he would say we need the money too. We had a, we're facing a severe depletion of state resources, and we need money to carry out emergency functions. We need the money more than the counties do. Yeah, our emergency, this sounds like something at an animal farm. All animals are equal, except some animals are more equal than others. You know, our emergency is important, and our emergency is more important than your emergency. That's right. Although it's, I think that would be the argument, but I think the counter argument is what he just said, and that is, well, look, you know, the counties have the same emergency, and they need to, and they're closer to the people who are sick, right? I mean, it's not just, you know, one state arching over everybody, but it's, you know, local governments dealing with local people. Where are you, you know, cutting them off at the knees? Well, Tom, you know, we talked about this before, and maybe I'm forgetting, but has anybody filed a lawsuit here to question his interpretation of the emergency proclamation statute that enables him ostensibly to do this? Has anybody gone to the courts? Has this issue been visited by the Supreme Court? And what happened? There was one case, I think, that went to Judge DeWeese on the Big Island, and it was somebody who I think was in, was cited for violating the emergency proclamation law, and then the defense argument was, well, you know, this is invalid because the proclamation should have gone for no longer than 60 days, and this, you know, chain proclamation deal is not right, and the judge said, well, no, it's still an emergency, so allow it to proceed, and it was never appealed. Never went to the Supreme Court. You know, it strikes me, though, that if you have virus number one, and he does stuff, and then all of a sudden, you know, we're in virus number two, that's a, that's a more threatening emergency. I mean, by virtue of the numbers, and here we are on the threshold of virus number three, that could be, although it's not clear quite yet, number three could be even a more threatening emergency. It's a new emergency. It's a new emergency for Delta, it's a new emergency for Omicron, isn't it? Because these are different viruses with different characteristics and different threats, would you allow him to issue another proclamation for another more threatening virus? I think that's, that's appropriate. Yeah, I mean, you know, if you have flood number one, and then hurricane number two, you don't, you don't question that the governor gets to do two different proclamations, even, even though they're like less than 60 days apart. I think this would be a good time to wrestle with some of the questions that were submitted, number of them were submitted before the show. I'll read them to you and you can see what you will do with them. Was the single party dominance in Hawaii politics what allowed the governor to have his way? How much does that factor play in all of this? I think very little, actually. Most states do have emergency power statutes. We have one that I think is typical of other states in the nation, you know, it doesn't matter if it's a red state, blue state, I mean, they all have provisions that allow the governor to do certain things in case of an emergency. And that's, I think appropriate, especially where, you know, like how we have here, the legislature or other parts of government are not in, are not in session all the time. Okay, somebody's got to mind the store even when other parts of government are in recess. Okay, here's one that we, you know, touched on a minute ago, though we didn't really delve into it. This question is when such powers, emergency powers, allow the governor to lock down the judicial branch. How do we test constitutional constitutionality? That's an interesting question. Let's assume that the emergency results in a lockdown of the courts. That really hasn't happened. And I don't think it would be constitutional if it was attempted. I mean, we were, our constitution definitely provides for three equal branches of government. And if the governor says, okay, if from this day forward, you know, the courts are now shut, I don't think the courts would take that lying down. No, but you know, the funny thing is that as a practical matter, as a logistical matter, it was the state judiciary that closed the courts last year for a time. Well, they closed the courts to in-person visits, like a number of state buildings were closed to in-person visits. But the business kept moving on. I mean, I'm a practicing attorney, and I've had a number of hearings in the courts via Zoom, just like how we're doing now. And the business goes on. Matter of fact, in the emergency power statute, it does have a procedure to test the validity of emergency power or, you know, proclamations. You go to the court, and you get a three judge panel convened, and you take a complaint to them. Okay. Well, even if the courts were shut down either by the governor or by the state judiciary, the state judiciary could open it up again. It runs the courts. It could impanel the three, it could impanel the three judge panel you mentioned. It could take it at any level. So I don't think there's really a legitimate concern on that. It could be, would be tested by the judiciary somehow. I mean, if there was a suit, and if a, what do you want to call it, the Chief Justice, the administrators in the court felt that there was, that it was a worthy constitutional issue at the time. Let's go on to the third question, which is the longest one. Here the individual sort of reveals a little about himself. He says, last year I challenged the leadership of the State Department of Defense if they were prepared to disobey, disobey in the illegal order. If they were going to have to wait for the courts to decide if it was constitutional, they didn't have an answer. What's your answer? Do you understand the question, Tom? Oh, yeah. And I think it's a dilemma for most people who are executive branch agencies. I think the short version of the answer is if you're running an agency, the governor tells you to do something. You do it. And wait for the courts later to tell you whether what you do is constitutional or not. Because you, as an executive agency, you really don't have the power to decide the constitutionality of your own powers. And then there are court cases saying that. Let's take some of the things that have happened during the Trump administration. If you or I were asked to do something that we felt was flat out illegal, you know, a demand, for example, to Raffensperger in Georgia to find votes, we could say, look, I'm not going to do that. Yeah. And I think there comes a point where even though the court said you have no power to declare your own stuff unconstitutional, I think at some point an executive an executive agency head will say, look, I can't do this. It just kind of goes past the line of morality or common sense. And the administrator will just say, no, we can't do this. Yeah. Yeah, that didn't happen here. But, you know, that's an issue that has happened and may happen again. So, okay. So what is your answer then to the question about this challenge? Would you have to wait? Well, we kind of answered this already, I think. Would you have to wait before the courts could rule? And what could you do if you felt that the order, the proclamation, the emergency proclamation was wrong, like Raffensperger in the case of Trump asking him for votes? You would say, no, I'm sorry. You'd probably want to document that. And you would know that your career is on the line because you wouldn't be in good graces anymore, having denied an order arguably lawful or unlawful. And you would take that position. However, in the state of Hawaii, it's not likely to happen. Well, in Raffensperger's situation, remember the request was coming not from his own governor, right? But from the president of the US who is not his boss. Right. Right. Crossing the line. One thing that you raised in preparation for this show, which I find very interesting and provocative, is that the legislature in 2022 contemplates legislation that would amend the emergency proclamation statute under which David Igay has operated here for the past couple of years. And we spoke before about two kinds of things on the table. One where the public safety, the public health is directly effective or indirectly affected. And the other is where he takes a medax to a whole chapter or agency in government. So the question is, what can the legislature do that would be appropriate? That wouldn't be a medax itself. How can they tune this thing up? What do you think? Well, last year, there was legislation that almost made it through that would have given the legislature some veto power, disapproval power over all or part of an emergency proclamation. And I think it's healthy to have checks and balances. You basically need all three functioning in order to have the kind of government that our founders contemplated. So the part that's really unsettling about an emergency proclamation is that the legislature really can't do anything about it. So I think it's right for the legislature to reassert itself and say, okay, if this goes on past a certain point, we the legislature are going to step in and do something about it. Because you got to remember, the legislature is the is the body that gave these emergency power to the governor in the first place. The emergency power statute is a statute. It's Chapter 127A of the Hoyer Revised Statutes. So what the legislature giveth, it can take it away. Oh, sure. I mean, they can repeal the whole thing. That's right. So the question is, what can they do now? You know, we do have Omicron and we have the possibility of other horrible things, catastrophes left and right, for example, extreme weather, that would be a huge emergency. And you know, for me, I would want the governor to have the power to do that. Whoever the governor is, I would want him to have the power to save the society in the case of an emergency like extreme weather and other climate change impacts. So how do you have to look around the corner on this? You have to imagine what those emergencies could be. And you have to do some real drafting, some real lawyering to make the statute resilient in the face of what could be true emergencies that we may not be able to predict exactly. We don't want him to be stuck because that would affect everybody. Yeah, I mean, the governor's response was, hey, I would say this, virtually every single state that tied the governor's hands has regretted it. He said that in a Star Advertiser interview. And I have no problem with that. Again, the governor, I think, should have emergency powers as long as they're related to the emergency. I don't think they should be immune from further review. I think it's entirely appropriate that the courts have the ability to check and balance the constitutionality of emergency proclamations or consistency with the emergency power statute, and there really hasn't been a good test so far. And I think it's also appropriate that the legislature should have some say on proclamations that go past a certain point in time. Well, let's get to that as a second question. The first question is yes, we can test his actions under an emergency proclamation through the courts. And that to me would be the first line of evaluation through the courts. But the problem is I would say, without knowing too much about it, you know more about it, I would say that it has to be driven off the language in that statute. So what is an emergency has to be defined. And his powers in the event of an emergency, they have to be defined. I mean, I'm nervous about him having the power to knock off a whole chapter in the Hawaii revised statutes. I mean, they could say, for example, if you want to suppress a given existing statute and because there's an emergency, how about telling us exactly what provision concerns you? And why? So that, you know, concerned citizens can make an appeal to the courts on that. I don't think that's right. And the that played out I think in a couple of weeks ago or four weeks ago when we talked about the Department of Education and how it was responding to the vaccination mandates that the governor had put in the emergency proclamation and the HSTAs at, you know, request to bargain over them. I mean, in that show, remember, we brought up the fact that the DOE basically said, look, talk to the hand because the emergency proclamation says this, you have no right to collective bargain because that law has been suspended, et cetera, et cetera. That's not what I think the emergency power statute is all about. Well, then you go to the question of what the legislature is saying, wait a minute, we don't like the duration of this proclamation is too long. And we don't believe that the renewal of the proclamation is appropriate in the circumstances. If you do that, Tom, don't you agree with me, you're making the legislature into a court and you're undermining the power of the courts in a way to interpret the actions of the governor. And you're also undermining the governor. I would say that if the legislature doesn't like something, it should be dealing with the whole statute, not just saying, well, this extension was wrong or that particular action was wrong, that makes it into a court. And frankly, I would not feel good about having the legislature act as a court. It's not set up to do that. And I cannot imagine how it could do it effectively. Right. Well, the courts are set up to make judgments on legal standards that have already been set up. Legislatures are better set up to make policy choices. That's what they do all the time. So if you're asking whether a particular action that the governor has proposed or has implemented is constitutional or not, I think that's still a it's still a court or the judiciary's job to make the determination. But I think you still have to have a policy based review. I mean, is it or is it not a good idea to entirely suspend the collective bargaining? For example. Well, yeah, let's go to that. And let's return to my friend at Long's. To me, we are talking about life and death. And we are talking about public health and disease, where we read in the paper about all these people who die. And over time, you know, something close to 90,000 people in the state have contracted the disease. And I can't tell you the total number who have died, but it's substantial. And it may well be substantially getting in the future. So when it comes to vaccine mandates, when it comes to saying we're not we're not going to do the ordinary thing here, because why? Because people are dying or at risk of dying. Unless I can see a really good reason to allow the collective bargaining provisions to stay in effect, I would say the governor can have his way. I want him to save lives. And so how many lives do I have to give up? Because the union wants collective bargaining. So we may differ on this. But my view is that we have lost our sensitivity to death, to people dying. In the country, there are almost 800,000 people. Can you imagine if there was an event in Moili, where five people were killed? It would be all over the front page and everybody would be horrified. How about 800,000? I think we have to take draconian steps to stop that from further increase. And if that means the union has to stand aside, I would say stand aside, man. This is a job for the governor who is watching it with his immediate staff. I understand we might not agree, but there are a lot of people like the one I met in Lawns. Right. And I think that's a very good point to end on. We have certainly various approaches to the issue. I do think that policy-based review of emergency proclamations is necessary and appropriate. Whether that's going to overturn individual decisions, that I think you're right, that's more of a court thing. The judiciary is better equipped to handle. So there really should be some limits on what the legislature can approve or disapprove in the name of reviewing an emergency order. But I think that's what we can look forward to in the 2022 legislature, because hopefully there will be provisions that are drafted and circulate, and that we the public get to comment on, and there will be no gotten replaced. Thank you for that. Well, this is an important issue. There's no question about it. We will have emergencies going forward. Sorry to say. Thank you very much for raising the issue, Tom, and discussing it. And thanks to our listener who submitted those questions. We always appreciate questions from our viewers. Tom Yamachika, President of the Tax Foundation of Hawaii. Thank you so much, Tom. Aloha, Jake. Aloha.