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.
The Legislature will consider the bill backed by legislative leaders that would enable them to declare an end to the state’s COVID-19 emergency. The proposal surfaced about a month away from the one-year anniversary of the day everything changed when the COVID-19 emergency was declared in Utah.
SB195, sponsored by Senate Majority Leader Evan Vickers, stems from the power struggle that persisted between Gov. Gary Herbert and the Legislature throughout the COVID-19 pandemic. Last summer, lawmakers 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.
Vickers’ bill would limit the duration of a public health order to 30 days. It would also 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.
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.
Vickers told reporters in a media availability Tuesday his bill was the product of a “real robust process” among legislative leaders and Cox’s office to strike an appropriate balance. He said it is not “perfect” and still needs “some refinements” but “basically the structure is there.”
“We feel really good it creates a nice balance,” Vickers said. “The one thing you need to realize is that all the powers that are being exercised by the governor and executive branch or the health department during a long-term emergency are legislative powers. And so it’s appropriate that we would have some oversight over those powers.”
Senate President Stuart Adams, R-Layton, echoed Vickers, saying “our Founding Fathers got it right” by putting policy decisions in the hands of a “larger, more deliberate body” rather than one person.
“As they came from England and saw dictators or rulers making all of the decisions, they wanted policy being made by individuals closer to the people, and that’s why they formed the legislative branches to set policy, and they got it right,” Adams said.
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.”
Asked whether the bill would enable legislative leaders to trample over public health in favor of politics, Adams said that’s a “matter of perspective.” He said health officials aren’t policymakers but they do serve in an “advisory role.”
“We surely need to be aware, and we’ve had the political consequences of ignoring health department recommendations, but again we haven’t taken them totally away, we’ve allowed their powers to exist on a temporary basis during an emergency,” Adams said. “If there were some type of immediate health crisis, we haven’t taken those powers away from the health department.”
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.
Adams 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.” But Cox and his office were mum Tuesday on whether they supported SB195. A spokeswoman for Cox didn’t return a request for comment.
From the House side, co-sponsoring the bill is House Majority Assistant Whip Val Peterson, R-Orem.
“The past year has been unlike any before and each branch of government did their best to address many unforeseen challenges,” Peterson said in a prepared statement. “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.”
Asked whether the bill inserts politics into public health policy, Escamilla told reporters, “No I don’t believe that’s the case.” She said “most of us” in the House Senate Democratic Caucus “agree there has to be a level of accountability because we are elected to represent our district.”
Utah-based libertarian think tank Libertas Institute declared its support for SB195 in 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.”