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Herbert changing household restriction after GOP legislative outcry

By Katie McKellar, KSL | Posted - Nov. 19, 2020 at 7:11 p.m.



SALT LAKE CITY — Gov. Gary Herbert's decision to remove limits on social gatherings outside individual households from a new public health order he expects to issue days before Thanksgiving came after tense closed-door meetings with legislators this week.

Herbert announced on Thursday he's not going to limit "what goes on inside the walls of your home" for the upcoming holiday season. While the mask mandate will be renewed, the new public health order replacing the one that expires Monday will not include limits on social gatherings between households, he said.

Herbert's change comes after hours of closed-door caucus meetings on Tuesday and Wednesday, in which some GOP House lawmakers complained about government mandates — particularly regarding restrictions over what Utahns are able to do in the privacy of their own homes.

"In recent consultations with members of the Legislature, we have come to the shared conclusion that seeking to regulate private conduct within the walls of a private residence is problematic, not easily enforced, and likely more subject to legal challenges," Herbert's office said in a prepared statement on Thursday.

"To that end, we are not renewing the order that individuals not gather with anyone outside their household."


In recent consultations with members of the Legislature, we have come to the shared conclusion that seeking to regulate private conduct within the walls of a private residence is problematic, not easily enforced, and likely more subject to legal challenges. To that end, we are not renewing the order that individuals not gather with anyone outside their household.

–The Office of Gov. Gary Herbert


But the governor and his staff — while removing the restriction — also sought to convey the importance of following such a restriction.

Herbert asked Utahns to make the decision not to gather outside of their households for Thanksgiving, given Utah's persistent COVID-19 surge that continues to dangerously overwhelm hospitals.

"This is not to say, however, that the risk of such gatherings has gone away," his office said. "As we head into the holidays, we remind Utahns that the safest holiday gathering is only with those who live under your roof."

Herbert has faced criticism from public health officials and Democrats for not doing enough to slow the spread of the virus but also complaints from some GOP lawmakers frustrated over government mandates. His decision to back off the household social gatherings requirement, while also maintaining the mask mandate, shows he's trying to find a sweet spot between the two.

Several GOP House lawmakers told KSL, on condition of anonymity because the caucus meetings this week were closed, lawmakers in those meetings voiced frustrations with the executive branch's restrictions, "unenforceable" government mandates and infringements on the Utah Constitution.

That was during an over four-hour closed GOP caucus meeting Tuesday night, after Herbert addressed lawmakers before health department staff, including state epidemiologist Dr. Angela Dunn and Health Department Interim Executive Director Rich Saunders, presented lawmakers with a "barrage of information," as one lawmaker put it, about the state's response to COVID-19 and facts around the virus' spread.

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After Herbert left the meeting, Gov.-elect Spencer Cox took questions. When the conversation devolved into a politically charged debate around executive versus legislative powers, the Constitution and mandates, at one point Cox expressed frustration and questioned why more lawmakers weren't asking more about "how to better protect Utahns," one legislator said.

The most ardent complaints came from right-leaning conservatives like Rep. Phil Lyman, R-Blanding, and Rep. Kim Coleman, R-West Jordan, who have been outspoken critics of the governor going too far with his executive powers amid the pandemic, according to several GOP House lawmakers.

"The usual suspects were using it to pontificate about the Constitution," one lawmaker told KSL.

A letter had also begun circulating, with many House GOP caucus members signing on, to urge Herbert not to enact any rules regulating social gatherings among Utahns inside their owns homes, particularly for the upcoming Thanksgiving weekend.

That letter gained enough traction that it turned into a formal caucus position after a vote in the House GOP caucus, according to several lawmakers who attended the meeting Wednesday.

House Speaker Brad Wilson said he delivered that memo to Herbert Wednesday night.

"Basically it was a 'thank you' for your good work, and we would ask you to consider in this next round ... that you let people decide what their holiday social gatherings are and use their best judgment," Wilson said.

Wilson, who said he didn't know about Herbert's announcement until a KSL reporter told him what the governor said in Thursday's press conference, said, "That's great news." Wilson noted Herbert had "signaled that was the direction he was going" in a meeting he had with him.

"He and Gov.-elect Cox were very receptive to all of the thoughts and concerns we shared, and I think we're on the same page in that we want to manage the virus as well as we can but be as unobtrusive as possible into people's private lives," Wilson said.

Wilson said many House GOP members "thought that we probably crossed a line by telling people what to do inside their homes."

Herbert, throughout the pandemic, has grappled with pressures from the Utah Legislature — which now has the power to call itself into special session during an emergency.

Soon after Herbert announced his new restrictions nearly two weeks ago, Lyman sent a blusterous email to House lawmakers demanding they do something.

"This is not acceptable. The legislature has been sidelined through this entire episode. Please, let's follow South Dakota's lead, not California's," Lyman wrote.

South Dakota, a state that has taken a lax approach to COVID-19 restrictions, is just behind North Dakota in states with highest rates of infection this week — with over 161 cases per 100,000 residents in the last seven days as of Thursday. Utah's is now 99.3 cases per 100,000 residents in the last seven days.

"We need a special session," Lyman wrote. "I don't care if we lack the votes to overturn this bogus exercise of authority. I want my vote counted. Ours is a representative form of government, not an oligarchy."

Senate President Stuart Adams and Wilson both told KSL this week that a special session — with the holidays approaching quickly, and Herbert's willingness to engage with legislators — likely won't be called before the 2021 general session in January. But they both indicated the issue of executive powers amid a prolonged emergency like a pandemic will likely be addressed in the coming session.

"There's broad agreement between us and Gov.-elect Cox that the emergency powers that the Legislature has delegated to the Department of Health and to the governor's office never contemplated an ongoing, grinding pandemic," Wilson said. "And (Cox) and the governor have both admitted and would completely agree the Legislature needs to revisit this section of our code and find a way to balance the policymaking role in an emergency that's ongoing versus a emergency for the short term."

In response to a request for an interview Thursday, Cox's staff said he was unavailable.

Lyman, in an interview with KSL on Wednesday, declined to talk about the closed caucus meeting, but did say he was "pleased to find out there are many more legislators than just myself or a handful that feel like the Legislature has been marginalized through all of this, and they're ready to do something."

To Rep. Ray Ward, R-Bountiful, who is also a physician, the debate around government mandates isn't the issue at hand. What matters is whether Utahns will change their behaviors to limit COVID-19's spread.

"It does not matter if it's a mandate without enforcement or a strongly worded suggestion," Ward said. "What matters is what we do."

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