Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority

52 Pages Posted: 24 Jun 2020

See all articles by Robert H. Thomas

Robert H. Thomas

William and Mary Law School; Damon Key Leong Kupchak Hastert, LC

Date Written: June 20, 2020


Hawaii’s government has a long experience responding to public health emergencies. But until 2014, when the Hawaii legislature adopted a comprehensive structural overhaul, Hawaii’s emergency response statutes and organization were a patchwork of scattered provisions that did not conform to modern emergency management and response practices.

The law’s first major test has been a dramatic one: the COVID-19 worldwide pandemic. Hawaii’s governor exercised his authority to issue a declaration of emergency, and later issued supplemental proclamations purporting to extend the termination date for the emergency.

This article analyzes whether the statute’s internal limitation on delegated emergency power—the “automatic termination” provision, under which an emergency proclamation terminates by law the sixtieth days after it was issued—may be enforced by the courts. It argues that that the circumstances in which a court would sustain a challenge are limited, and that the primary remedy will be a political one. It should not be so, however, because Hawaii precedents confirm that the courts should enforce the essential separation of powers boundaries between the other branches. This article examines the prominent narrative threads that have emerged from Hawaii’s history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.

Keywords: Hawaii constitutional law, emergency law, public health law, Hawaii Supreme Court judicial history

JEL Classification: K32, K41, I18

Suggested Citation

Thomas, Robert H., Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority (June 20, 2020). University of Hawaii Law Review, Vol. 43, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3632081 or http://dx.doi.org/10.2139/ssrn.3632081

Robert H. Thomas (Contact Author)

William and Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

HOME PAGE: http://www.inversecondemnation.com

Damon Key Leong Kupchak Hastert, LC ( email )

1003 Bishop Street
16th Floor
Honolulu, HI 96813
United States
808-531-8031 (Phone)

HOME PAGE: http://www.inversecondemnation.com

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