When emergencies strike, people naturally turn to the governor for a response, and he needs to be as nimble as possible, relying, of course, on the advice of experts at his disposal.
His declaration of a state of emergency, for instance, can make the state eligible for federal funds that could help the state in troubled times.
Unfortunately, a bill lawmakers are considering as part of their special session this week would take away some of this nimbleness in a misguided attempt to give lawmakers a greater say.
HB3005 passed the House by a 56-18 margin Thursday. It requires the governor to give legislative leaders of both parties at least 48 hours notice before issuing an executive order or declaring an emergency in connection with a pandemic or epidemic.
In arguing for the bill, the sponsor, Rep. Francis Gibson, R-Mapleton, lamented that, concerning the current pandemic, in some cases lawmakers were not notified the governor intended to issue such an order until only minutes before the fact. Gibson would like two days’ notice so that legislative leaders may contact their own experts and legal advisers to see whether there might be other solutions available that would make the order unnecessary.
The bill applies only to pandemics or epidemics, and it provides an exception if the governor’s order is necessary to prevent the imminent loss of life.
The first problem is that the bill may be an unconstitutional infringement by the legislative branch into the executive branch. The second is that it aims to solve a problem that doesn’t exist.
Gov. Gary Herbert has been prudent in his use of executive authority concerning the pandemic. Despite critics calling for him to issue a statewide stay-at-home order, he chose instead to issue a more general “stay home, stay safe” directive that includes guidelines and gives county leaders leeway to respond with stricter orders, if necessary, to handle the concerns in their jurisdictions.
Not all parts of the state have been equally impacted with COVID-19, which made a blanket order seem unwise. Herbert wisely chose to let local jurisdictions have greater freedom to meet their needs.
What part of this does the Legislature find objectionable?
One of the bill’s few opponents in the House, Rep. Merrill Nelson, R-Grantsville, said the governor’s office is, by design, better suited to make emergency declarations, whereas the Legislature, by design, deliberates more slowly. The 48-hour requirement would unnecessarily slow the governor down in responding to problems.
Indeed, the bill seems so narrowly tailored to the present unique circumstances as to make it an unnecessary encumbrance. Why should the governor be required to give 48 hours notice for an executive action concerning a pandemic and not for an earthquake or an exceptionally severe storm, for instance?
Certainly, the governor ought to consult with legislative leaders in a timely manner, just as he consults with many others. Cooperation is important.
But Utah has done well in its response to the pandemic. The current process serves the people competently. There is no need to unnecessarily confuse matters.