 Aloha and welcome to Hawaii Together on the Think Tech Hawaii Broadcast Network. I'm Kaley Iakina, your host and president of the Grass Root Institute. If you have been aware of anything at all, you know that we've been in a state of emergency for the last two years. As of March 4th, it will be two years since the president, excuse me, since the governor first pronounced the state of emergency to deal with the COVID situation. And that's quite a long time. Originally, it was supposed to be a 60 day emergency period. We're taking a look at this in depth today. Our topic is ending Hawaii's state of emergency. As you know, Hawaii legislators have introduced several bills that would limit the governor's potentially endless emergency powers. According to Malia Hill, Grass Root Institute of Hawaii Policy Director, the goal is to bring a much needed end to the state's economic and social lockdowns and restore the government's constitutional checks and balances. We're going to talk with Malia today. You've seen her on the program before, and I want to welcome Malia. Aloha, all the way from the east coast near Washington, DC. Malia Hill, welcome to the program, Malia. Hi, Kaley. So nice to be back. Well, you've been an important part of the Grass Root Institute for quite a while. When you lived in Hawaii, you worked on legislative staff and became part of the Institute. Then when you moved away, you stayed on board virtually at least as our representative up on the east coast in DC. What keeps you with the Grass Root Institute? Well, my body may be here in Washington, DC and very chilly, but my heart is still in Hawaii. I have family in Hawaii, like so many people I had to leave. But those of us who leave, we always sort of think one day I want to come back. And one day I want to come back and I want to, while I'm away, contribute to making Hawaii better, happier, more prosperous. Well, thanks to the technology of distance communication. You're here with us constantly on a daily basis in the islands, and we appreciate your policy work. You have been published here in local media, and you continue to do significant work that helps improve the quality of life of many people in the state. Now let's get to the topic today. Governor Ege just extended the emergency again through his latest proclamation, which is going to terminate on March 25th. At this point, it seems safe to say that we're in somewhat of an indefinite state of emergency. But there are a lot of questions about the law that allows the governor to make the emergency proclamations. What was it intended for and explain to us a little bit about that law? Yeah, because of the way that the COVID emergency has gone, we are looking at this statute in an entirely different way. But originally, we're all familiar with the emergency management statute. The intention is, as it's right there in the name, it's to give the governor powers to act quickly and to respond to an emergency. And you think of it as something that you need to respond to, obviously, times of war or military kind of action, but also hurricanes, natural disasters. And we usually see it employed with things like hurricanes and flooding, that sort of thing. But in the last two years, over the course of the COVID emergency, we've seen that this law was not really made with the intention of dealing with a problem that is going to go on for indefinitely. The emergency statute, as it is, has an automatic termination of 60 days. And it has, as we've noticed, we're way past 60 days. And what has happened is that the governor just keeps extending the emergency and taking advantage of the powers that he has by virtue of the statute to basically somewhat usurp the legislative function. And we've actually gotten to the point where the governor's been extending this emergency indefinitely, contrary to the clear intent of the statute. And we've even gotten to the situation where some of the changes that we've been living under under this COVID emergency, things like changes in licensing restrictions for doctors and nurses, those kinds of things. People almost want that part to continue, but it's all tied up in these emergency proclamations. And fundamentally, this is just not the good democratic way to run a state government. Well, you know, it's kind of ironic that although it's not ideal to be in a state emergency, that has loosened up the government with regard to some regulations, as you mentioned, such as telemedicine and so forth. So here we are needing to bring medical personnel into Hawaii to deal with the emergency, but we have to amend the law to allow them to be licensed, sort of what we've been advocating for all the time, reciprocal licensing. And so that is really an irony. I'm glad you pointed that out. Now, let me ask you this. Why, therefore, is it a problem if the governor keeps extending the emergency? And now that the most restrictive orders have been lifted, maybe we need the extended proclamations to deal with these, for example, like travel, or am I being too glib about that? You know, it's actually an interesting question because, you know, it was no difficulty talking about this, you know, at the beginning of the, you know, pandemic when people are starting to get frustrated at the lockdown. But now that the worst of the lockdown has been lifted, it isn't impacting people's lives in the same way. So the question comes, you know, what is really the problem here? And to some extent, I'm afraid I'm going to have to be philosophical and say that, you know, the extended emergency upsets the balance of power. It prevents the people from having a voice in the conduct of the emergency. And those democratic principles still matter. The emergency, especially as it is now, the law basically allows the governor to exercise legislative powers, like suspending laws and creating new regulations for as long as the emergency exists. Now, sometimes that's good. We like what he's done, but that doesn't make the function of what he's done a good thing, you know, it's still problematic that he's acting in a legislative capacity. This is understandable for a few weeks. That's what the statute envisions. But two years, that's a totally different ballgame. You know, if the governor has introduced something that we say, wow, that really worked. What a great idea. And the legislature can and should just act to make that part of the law. You know, yes, let's make that permanent. I mean, we can go on and on. Probably this is for a different, a different program about the changes that, you know, would be good to make permanent that came from the emergency orders, but that still doesn't get away from the fact that the legislature shouldn't be shirking its responsibility by leaving these kinds of things to the governor. Sure. Well, Malia, you never have to apologize to me for being philosophical. There are times when we do have to be popular and take the popular will of the people into consideration. And so we do look to see whether the people want the lockdowns or not. At times, we have to be pragmatic and see whether there are good things that are coming out of the lockdowns in and of themselves. But you raise a very important question for democracy. And that is, are we constitutional? We have something, as you pointed out, called the balance of powers. And so the fact that we have one individual capable of declaring and maintaining almost perpetually a state of emergency seems to work against that balance of powers. And it mitigates not only the role that the or the powers that the legislature has, and those powers ostensibly represent the people, but it also mitigates the responsibility that the legislature takes or needs to take for what goes on. And so I think more people do need to talk about what you're raising. And that is the damage that is done to the balance of powers, which is an essential constitutional part of the way we do government in the United States. Now, back in the 2021 legislative session, there were already attempts to curb the emergency powers. In fact, there was a bill we were very disappointed that it ultimately did not pass. Do you want to tell us a little bit about that? Yes, that was a HB 103, which basically was trying to create a mechanism where the governor would need legislative approval to extend the emergency, pass the 60-day time limit in the statute. As it is right now, the statute just says an emergency terminates at 60 days. And then it doesn't specify what happens after that. So the governor has, during the COVID emergency, just extended and extended and extended. And there's nothing that says he can do that, but there's nothing that says he cannot. And so far, it has been allowed to continue. HB 103 wanted to put a stop to that, and it did move through the legislature and was supported by a lot of different public interest groups, obviously the Grassroot Institute, also groups like Common Cause and even the Hawaii Government Employees Association were behind it. But the bill failed in conference committee for somewhat mysterious reasons. We've looked into it and we've heard that maybe it failed because of disagreement over how it was exactly that the governor had to get the legislature's approval for the extension of the emergency. We know that the governor didn't really want that bill to pass, so there is that. That is a consideration as well in the way it failed. Right. Well, I suppose it's a case of when we get behind closed doors. We don't know really what goes on in those conference committees. But whatever reasoning took place that led to the demise of HB 103, let's look ahead. This legislative session, are there any bills on the docket that would address the problem of indefinite emergencies? And some of the other issues related to it, such as emergency management, well, within the emergency management statute? Well, there are a few bills that speak specifically to our concerns. Most significant at the moment is HB 1585 because it's being heard tomorrow in Tuesday in the House Committee on Pandemic and Disaster Preparedness. This bill lets the legislature and an emergency either in part or in whole, which is an interesting twist, by a two thirds vote. It also clarifies that emergency powers have to be consistent with the Constitution and it creates parameters for the suspension of laws, including the requirement that there be a justification when a law suspended, which is pretty important for those who feel like some of the laws have just sort of been suspended for convenience sake. I understand that you're working with a team on some testimony for that bill in particular. And one of the questions that arises is what value is there in the legislature being able to overrule even just a portion of the decree of the governor? That's actually a very interesting thing. And yes, we were going to submit testimony on this bill, which we think for the large part is a really good bill. It takes some important steps to curb this indefinite emergency thing and to put a legislative check on the governor's powers. The reason that you might want the legislature to end an emergency in part is because phasing out some things, when you end the emergency, everything that was in the proclamation in theory would just end, including some of these things that we might like or that might require. If, say, example, you wanted to the legislature wanted to end the emergency on the whole, but there were elements of the safe travel system or vaccine elements, requirements and such that they wanted to preserve. This would let them preserve portions of that emergency until they could address that. Because all of a sudden, let's just say one day you have the safe travels in place and then the next day you don't, it creates a bit of uncertainty and problem. So you can see why having it end in part is useful. The other reason is that there's the possibility that certain funds are tied, especially federal funds, would be tied to the fact that you are in a state of emergency and so you wouldn't want to completely end the emergency in order to take advantage of that. So there are reasons why we wouldn't necessarily have an issue with partially ending the emergency and partially keeping it in place. That's not automatically a problem. For the most part, this is a good bill. I'd like to see some stronger language in the way that the governor would need to get approval from the legislature to extend an emergency because as it's written, it does let the governor extend an existing emergency. And I'd like to see a few more protections in place for transparency and for the civil rights, especially property rights. But it's a really good step in the right direction. Well, that's good to hear. And you're talking about HB 1585. Yes. I agree with you. I think that the fact that it's not an all or nothing kind of bill, the fact that it's not throw the baby out with a bathwater bill, but is a little more surgical than that makes it feasible. It makes it more practical and realistic in terms of trying to manage what's going on in the public. And more than that, it may allow us to retain some of the emergency features that have actually been good that perhaps in the long run, such as telemedicine, such as reciprocal licensing for medical personnel from other states, these things which in the long run may be good for why we can retain them a bit. We're going to take a break now. But when we come back, I'd like to hear a little bit more about what's going on at the legislature in terms of other bills and how effective you think they may be. I'm with Malia Hill now, policy director of the Grassroot Institute. We're going to take a short break and then she'll be right back talking about what the legislature is doing in terms of altering the perpetual states of emergency that one official, the governor, is able to enact. I'm Kilia Keena on the Think Tech Hawaii Broadcast Network. Don't go away. We'll be right back. Aloha. I'm Joshua Cooper and welcome to Cooper Union. We look at what's happening with human rights around the world and we invite you to tune in every Tuesday where we feature the voices of the people from the front lines, sharing the struggles for self-determination for the importance of sustainability and solidarity with one another to make the world a better place for all of humanity. If you can't catch it live, you can also look at ThinkTechHawaii.com as well as on Vimeo and many other places to catch the amazing shows where we hear from authors, activists, academics, analysts and artists who are contributing to positive social change around the planet. Aloha. Thank you for joining us for justice. Aloha everyone. Welcome back. Thanks for sticking around. You're watching Hawaii Together on the Think Tech Hawaii Broadcast Network. I'm Kilia Keena with Malia Hill, the Policy Director of the Grassroot Institute. Malia, you were telling us about an important bill that would potentially curb the emergency powers of the governor giving the legislature more power and responsibility, thus restoring to some extent the balance of powers, an important feature in our constitutional form of government. There's some other bills that are worth noting as well. Do you want to comment on some of them? Yes, 1585 is the only one that's had a heatness up for a hearing so far, but there are a few other bills that have been introduced that haven't yet been heard. There's HB1416, which is essentially a replica of last year's bill. It's very similar to the one that's being heard already in that it allows for a termination of an emergency by a legislative resolution, and it has similar provisions about the suspension of laws and the emergency powers having to be exercised in accordance with the Constitution. There's a Senate bill, SB 3285, that's the Senate version of the one that's being heard in the House. And then there's a pair of bills, HB2121 and SB 3089, that are part of the governor's package. So the governor has sort of weighed in That's quite interesting. And let's take a look at that a bit because I find some of the approach of the governor quite telling in terms of his posture toward what the legislature is trying to do in turn to reducing the powers of the governor. Yes, it is interesting. It does have some similarities to the other bills in that it does have language about constitutionality, the state constitution having to, all emergency powers have to be in accordance with the state constitution. It has some similar language about suspension of laws, having to be justified and having to end as soon as they can. But the way that it deals with that real big question, the 60 day termination clause, is that it codifies that the governor can extend emergencies through supplemental proclamations, which is effectively what he has been doing this whole time. It just puts it into law that what he has been doing this whole time is completely okay and legal, which raises some interesting questions. It's almost like an acknowledgement that, hey, maybe this wasn't 100% okay and legal up till now. But, you know, now for sure, you can 100% do that. Very interesting. Yeah. And it does not, I think it probably goes without saying, but it doesn't, the governor's version, the governor's package bill does not have a provision that would let the legislature end an emergency by any kind of vote. We'll take a look at the battle over that. Now, it's also 1496, which deals with gatherings in public. Yes, there is a bill, you know, there's, there are so many bills introduced and, you know, it's a lot of them touch on emergencies in different ways. There is one 1496 that basically allows the restrictions on public congregations in a state of emergency. This has been a real tripping point of debate for people, especially regarding restaurants and bars and retail food establishments. That's specifically what this bill is about, allowing them to limit service to vaccinated persons or patrons with a negative test for a contagious disease. Very specific bill. But this bill also says it can, the restriction can last no more than 30 days. And that it requires legislative approval in either regular or special session, if you're going to extend it. So it's a real mixed bag as bills go. And it's interesting to see it as one of the ones that was introduced this year. Well, take a look at all these bills together. Would any of them really have an impact in terms of stopping the governor from extending, continuing to extend that is his emergency orders in the fashion we've seen over the last two years? You know, it's interesting to put it that way because while we've been sort of talking about these bills and the emergency powers and the emergency management statute in terms of stopping the governor, what we really, really want is a return to balance of powers. That's the real goal here. So it's not so much, you know, getting these mechanisms stop the governor as just ending the ambiguity of this 60 day time limit and finding a way to make sure that people have a voice in the way that this emergency is and emergency is managed via their elected representatives. So that's important to remember because there are several of these bills that do allow the legislature to end an emergency via resolution or vote, etc. So hypothetically, that makes it possible to stop these indefinite emergencies exactly like what we're talking about, but it's really, really important to recognize that it's a vote. So it isn't the, that it would stop the governor, it's that it would make it possible for the legislature to stop the governor assuming that the legislature does vote to stop the governor. So, you know, it's a subtle difference, but it's important because just because you passed this bill, let's say, if you are really, really watching into the emergency, the bill passes, it doesn't mean that that will end the emergency. The legislature could choose not to act, the legislature could choose to endorse the continued emergency proclamations. I think what you've said underscores the importance of citizens getting involved in the voting process. We have every legislator in the House of Representatives, as well as the Senate, up for election, this coming election 2022. And if we really want to see a legislature that is empowered to stand against the executive branch when necessary in order to balance the powers, we also need to see that we've got the right people in there to vote the way that they should vote. And so this is my plug, it's my commercial plug. Exactly, though, there's no such specific engagement. We talk about the legislature kind of giving up responsibility and handing it over to the governor. Well, the people cannot do the same thing when it comes to the legislature, just because the legislature is there, it doesn't give you an excuse to just check out and not act and not be engaged because the legislature will only act if people are engaged. Right. Now, at the same time, with all of this concern over the balance of powers, we recognize that there is a role for the executive. We do have natural disasters from time to time. There are other kinds of emergencies, catastrophic in nature, that occur. And we do definitely want to have someone in a position of power capable of acting on behalf of all the people. Now, do these restrictions on governor's emergency powers represented at some of the legislation going forward prevent the governor from being able to act when he needs to respond to natural disasters or catastrophic emergencies? Short answer is no. This is actually one of the things that does make it difficult to amend the law is that in all fairness to the legislature, they are trying to walk a line where they preserve the ability to respond to emergencies, but take advantage of what we've learned through the pandemic to prevent the indefinite exercise of executive power without a legislative check. So these are changes are very specific, really specifically tailored to address the shortcomings in the existing law. It's very obvious that when this law was written, it just was never intended to cover an extended health emergency. It's really designed to deal with these more immediate natural disasters, catastrophic emergencies that you're talking about, and that won't go away. You know, it's important to recognize we're really not at a place where we're able to construct the legal system that surrounds emergencies from scratch. We're doing this on the fly as a society. What we're trying to do is correct a flawed emergency powers act while we're actually using it at the same time. So that's quite an interesting dynamic as we advocate for constitutional structures, but at the same time recognize the pragmatic issues that need to be addressed. Now, I've got a question that I've been thinking about for a while. Many people have. At the Grassroots Institute, we're very committed to transparent government, open and accountable government. And so we were concerned when originally the governor enacted the first emergency decree and actually suspended some public records law at that time. Now, is there anything being done to fully restore public records laws and government transparency in general for the public? Well, you know, that's a very good question. You know, Hawaii was the only state to suspend public records law early in the pandemic, and it was lifted a few months later. But there was a lot of criticism. Grassroots Institute joined that criticism of government watchtower groups, common cause, civil beat of the governor for taking that action. It seemed unnecessary. This was definitely something that you would like to see a rationale for the suspension of the law. There has been a bill introduced specifically on that issue, SB 20, 29, 16. It prevents suspension of open records or vital statistics requests during an emergency. Obviously, that's a very good law. And I would like to see it pass. But, you know, there's no reason why we couldn't see protections for transparency added to whichever emergency management bill moves forward this session. It would be nice to see that element in there. It would be nice to see something that recognizes the need for greater transparency from those executive from the part of the executive and his advisors and the actions taken in an extended emergency like that. Now, Malia, my last question for you has to do with your role. One of the things you do as policy director for the Grassroots Institute is scour the country for best practices defined where there are states that may have solved problems that we have. Have you seen any of the kind of legislation we're talking about getting into effect in Hawaii go forward in other states? Well, you know, it's interesting you talk about, you know, trying to adapt and respond to the problem on the fly. And that is happening in almost every state. According to the National Conference of State Legislatures, legislators in every single state proposed some kind of measure to address executive emergency powers during the pandemic once it started. It had different, very differently, different states have different laws. Some are already more constrained than the one in Hawaii. Some states have laws that separate different kinds of emergencies and who's allowed to act and why and so on. So a lot of them have different time limits. But bills were enacted in about nine, at least 19 states, 19 different states made changes to their emergency management law based on the experience during the COVID-19 pandemic. About half of them limited the length of time that a governor could maintain a state of emergency or they required legislative approval to extend a state of emergency. So Hawaii is not even very close to alone here. Well, Melia, I want to thank you very much for being with us today. Our guest Melia Hill, policy director for the Grassroots Institute of Hawaii. I'm Kili Iacina, president of Grassroots Institute and you're watching Hawaii Together on the Think Tech Hawaii Network. Thanks everyone for being with us. Thanks again, Melia. Thank you.