The Capitol in Salt Lake City is pictured on Friday,
Feb. 5, 2021.

Kristin Murphy, Deseret News

Governor vague on changes he wants in battle over limiting emergency powers

By Katie McKellar, Deseret News | Posted - Feb. 19, 2021 at 9:12 a.m.



SALT LAKE CITY — Gov. Spencer Cox says he isn't 100% on board with a bill backed by Utah's legislative leaders to rein in the governor's emergency powers in a long-term emergency like the COVID-19 pandemic, but he's vague on what he wants changed.

"There have been lots of changes made at our request," Cox told reporters during his monthly news conference with PBS Utah Thursday morning when asked about SB195.

"We will continue those negotiations, we'll do those privately, and when the final version of that bill comes out, we will let you know whether we support it or not," Cox said. "I think that's the better way to negotiate these, and so we will continue to do that."

Cox's comments came shortly after the Senate Government Operations and Political Subdivisions Committee voted unanimously with bipartisan support to advance Senate Majority Leader Evan Vickers' SB195 to the full Senate for consideration. There, it's expected to find support.

Legislative leaders are fast-tracking the bill so it can make its way to the House next week.

Vickers' bill would empower the Utah Legislature to override governor and public health department executive orders once an emergency order expires after 30 days. It would only allow the Legislature to extend or terminate an order and would give lawmakers the power to end an emergency earlier than that 30-day time period.

The bill would also 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.

Both Republican and Democratic legislative leaders are supporting the bill, saying Utah law never contemplated a long-term emergency like a pandemic and needs to better balance executive with legislative powers.


We had to make decisions that no governor should ever have to make about saving lives and saving livelihoods. Nobody relishes this. Nobody enjoys it.

–Governor Spencer Cox


That is an argument Cox said he agrees with.

"I do think that the emergency order that exists now never contemplated emergencies that last for a year," Cox said. "And so I agree, and I've said from the beginning, we should examine this and make it better for both the executive branch and the legislative branch to function over the course of something that lasts this long."

'We have made mistakes'

But Cox said he's still negotiating on the details in the bill, not offering specifics on what he'd like to see changed.

"What I've encouraged all along is to not overreact to something that happens every 100 years," he said.

Cox acknowledged "we have made mistakes during this pandemic, for sure," and one of those mistakes was "not communicating better with the Legislature about changes that were happening. We would often communicate with legislative leadership, but as any member of the Legislature will tell you, legislative leadership is not the Legislature."

Cox's predecessor, Gov. Gary Herbert, faced backlash and anger from some members of the Legislature who were frustrated that he was exerting too much of his executive powers to control the COVID-19 pandemic. Others, including Democrats, thought Herbert wasn't doing enough.

Related

Now, Cox argues his administration that began in January has done "a much better job of that," noting he's met directly with both majority and minority caucuses in recent weeks, and he's planning to meet with them again next week.

"Again, we respect the Legislature and what they're attempting to do here," Cox said.

He went on to describe the struggles he and Herbert endured over the past year, calling it one of the "worst years" of their lives.

"By the way, I have to just be honest, it would be much easier if the Legislature would do more of this," Cox said. "There's this belief out there that governors love executive orders and governors love emergency powers and governors love making all of these decisions. And let me categorically tell you, the last year — and if Gov Herbert were here he would tell you — was one of the worst years of his life. It was one of the worst years of my life. It was one of the worst years of everyone's lives here in the state of Utah. And we had to make decisions that no governor should ever have to make about saving lives and saving livelihoods. Nobody relishes this. Nobody enjoys it."

Cox then got somewhat fiery when pointing out the Legislature has had the power all along to call itself into a special session amid a declared emergency, a change in law that was approved by voters in 2018.

"I will also say, and I will remind the Legislature, that they now have the ability to call themselves into session at any time and overrule any order that's been done from the very beginning — they have that authority now," Cox said. "They don't need a bill to change that.

"And I will also note," Cox added, "that they failed to exercise that authority at almost every turn because they didn't want to make these decisions either. And so it's a really, really difficult position to be in. And so we will work together."

'We're in agreement'

Vickers, R-Cedar City, when asked about Cox's comments in a news conference later Thursday, said the Legislature was "reluctant" to call itself into session to tackle the governor's COVID-19 orders because they knew there were some "loopholes" or gaps in current state law that would allow the governor to issue another executive order even if it was repealed.

"So we had been negotiating and working very closely with the executive branch on this bill," Vickers said, noting that he had two conversations with the governor's office earlier Thursday. "There's a few refinements (to be made), but for the most part we're in agreement on things."

Asked whether the 30-day emergency order expiration date is a safe time period in light of the duration of the COVID-19 pandemic continuing to trouble Utah, the nation and the world, Cox said "those are discussions we're still having."

"Thirty days seems like a short amount of time right now, but I will tell you, in March 30 days seemed like a year," Cox said. "Whether 30 days is the right number or 60 days is the right number, there's a number in there, and we will continue to work to figure out which is the right one."

Vickers, when asked, said he thought they'd already settled on the 30-day time period.

"We had some discussions about 30 and 60 (days) earlier, and we've landed on 30," Vickers said. "I guess if they have further questions, we'll consider those but right now we pretty well agree and settled on 30."

Before the Senate committee voted to endorse the bill, Sen. Daniel Thatcher, R-West Valley City, said the debate ranges from two extreme points of view.


This is one of those bills you hope you get it right, and then you put it on a shelf and don't have to use it for a long time.

–Senate Majority Leader Evan Vickers


"No. 1 is that there should be absolutely no interference from the Legislature whatsoever in health departments — that they should do anything and everything that they want with no interference," Thatcher said. "With as much kindness in my heart as I can muster for that point of view, that is absolute tyranny. The idea that they should be able to do anything and not have to answer to the elected representatives of the people is completely insane."

Even though the Legislature has the ability now to call itself into session to repeal emergency orders, Thatcher said that would only "set up this tug of war" because the governor could simply replace the order.

"We would have to affirmatively pass a law to reign in the potential for tyranny, and I believe that is what this bill does very, very deftly because it allows them that 30 days," Thatcher said.

The other side of the debate, Thatcher added, is "there should be anarchy."

"That there should be no authority, that nobody should ever be able to tell anybody what to do regardless of the level of risk to human life," Thatcher said. "And I think we've done a pretty darn good job here of establishing that authority can and should exist."

Senate Minority Leader Karen Mayne, D-West Valley City, told reporters she and other Senate Democratic leaders support the bill, agreeing the state needs a framework so it's not like trying to "bake a cake on the run" in the middle of whatever the next long-term emergency is.

"This will happen again," Mayne said. "These kinds of things will happen. We have to have a structure in place so we're all working together."

Vickers added: "This is one of those bills you hope you get it right, and then you put it on a shelf and don't have to use it for a long time."

"Another 100 years would be fine," chimed in Senate Majority Whip Ann Millner, R-Ogden.

Senate President Stuart Adams, R-Layton, credited Vickers with doing a "masterful job" of including everyone on drafting the bill.

"Obviously we don't always see everything eye-to-eye, but we're trying to find that sweet spot that brings balance," Adams said. "And I think we're very close to it."

Katie McKellar

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