Legislators want to restrict emergency powers for governor, health officials

SALT LAKE CITY — A Utah Senate leader has unveiled a bill with major implications for Gov. Spencer Cox's emergency powers, as well as politicians' ability to override state and local public health orders.

It stems from the power struggle that persisted between Gov. Gary Herbert and the Legislature throughout the duration of the COVID-19 pandemic. Last summer, the Utah Legislature refused to extend Herbert's pandemic emergency order, leading the governor to issue new emergency orders each time they expired in order to keep them in place.

Senate Majority Leader Evan Vickers' SB195 would limit the duration of a public health order to 30 days. It would only allow the Legislature to extend or terminate it. It also would give the Legislature the power to terminate an emergency earlier than that 30-day time period.

It would prohibit the governor or the health department from declaring a new emergency for the same issue unless there are exigent circumstances like a "significant change" after expiration that "substantially increases the threat to public safety or health," according to the bill. It would require a public legislative meeting to evaluate whether to extend the health order at the request of the health department.

"The COVID-19 pandemic has been new territory for all of us, and over the last 11 months, we realized the need for adjustments," Vickers, R-Cedar City, said in a prepared statement issued Tuesday.

"Utahns voiced concerns and lawmakers looked for ways to improve the process to ensure democracy is upheld, even in times of crisis. We have an opportunity and duty to take the lessons learned and prepare for future prolonged pandemics, whether it is in a year or 30 years," his statement said.

SB195 would also allow the Legislature to terminate a public health order from the state health department — as well as allow a county council to do the same for a local health department. Additionally, it would require the health department to notify legislative leadership within 24 hours prior to declaring a public health emergency.

It would also reduce the $10,000 penalty for violation of a health order from a mandatory punishment to an optional one, and clarifies it applies only to companies or organizations. Under the bill an individual who violates a public health order would face only a maximum penalty of $150 per violation.

The bill would also ban restrictions on religious gatherings, and prohibits a local health department from issuing a restriction without the approval of the country executive, such as the county mayor or commission.

The bill comes after mainly conservative lawmakers griped about Herbert's COVID-19 orders, particularly the mask mandate. A Piute County commissioner compared the governor to Hitler after Herbert approved requests from Salt Lake and Summit counties to require mask wearing in public. Last fall, GOP lawmakers fumed over a restriction Herbert put in place to limit social gatherings between households. Amid that outcry Herbert repealed that restriction ahead of Thanksgiving.

At the same time, Herbert was caught in the middle of criticism from a different angle, with some Republicans including his predecessor and gubernatorial candidate former Gov. Jon Huntsman Jr. and Democrats that Herbert wasn't using enough of his powers swiftly enough to clamp down on the highly contagious and deadly coronavirus.

Senate President Stuart Adams, R-Layton, and House Speaker Brad Wilson, R-Kaysville, said early on that the session would include legislation to "balance" the Legislature's and governor's powers amid a prolonged emergency, arguing current law never contemplated a long-term emergency like a pandemic.

Cox has said his office was working with legislators to "find the appropriate balance." It wasn't clear Tuesday whether Cox or his office supported SB195. A spokeswoman didn't immediately return a request for comment.

"The past year has been unlike any before and each branch of government did their best to address many unforeseen challenges," House Majority Whip Val Peterson, R-Orem, said in a prepared statement about Vicker's bill. "Moving forward, we must ensure that our actions maintain the appropriate separation of powers during both long-term and short-term emergencies."

Senate Minority Whip Luz Escamilla, D-Salt Lake City, also spoke in support of changing Utah's emergency powers law.

"The pandemic showed that modifications were needed in order to adequately face our next extended emergency," Escamilla said in a prepared statement. "During a state of emergency, decisiveness is critical, and suspending some rules and laws may be needed. However, when an emergency extends past a specific time frame, it can no longer be classified as an emergency but instead should be considered a prolonged circumstance."

Utah-based libertarian think tank Libertas Institute declared its support for SB195in a post on the group's website, arguing that Utah's current emergency powers law "allows the governor to assume various additional powers, including suspending laws passed by the Legislature.

"Such orders also, for a public health crisis, empower public health officials to wield near-dictatorial powers to control people and property without due process," the Libertas Institute's post stated, adding that allowed Herbert to "basically ignore the Legislature and continue to exercise augmented powers."

"The existing emergency laws contemplated short-term emergencies that need a dynamic response from the executive branch where the Legislature would not have time to review, discuss, and reform laws as necessary," Libertas Institute's post states. "However, a prolonged pandemic and the government's response to it does not meet these criteria at all."

But some, including a group that represents health care providers, aren't supportive of SB195.

"We have concerns about the ability of an elected official to override the authority of a health department to make medically and scientifically based decisions in the best interest of public health," Maryann Martindale, executive director of the Utah Academy of Family Physicians, said in a text to the Deseret News on Tuesday.

"During times of emergency and crisis, health experts and elected officials should work together, but the authority needs to rest with those who have the appropriate education and expertise to make decisions that are in the best interest of the general public," Martindale said. "We are very concerned that this bill shifts the balance away from health-based decisions — especially during emergencies — to the whims of political influence, too often swayed by special interests."

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