Utah governor’s emergency coronavirus orders continue to frustrate conservatives

(Steve Griffin | Deseret News, pool) Gov. Gary Herbert provides updates on the ongoing pandemic in Utah during the weekly COVID-19 briefing at the Capitol in Salt Lake City on Thursday, Sept. 17, 2020.

Utah lawmakers are the target of an onslaught of emails, phone calls, and social media messages urging them to meet in a special session to end Utah’s COVID-19 related state of emergency.

“I’ve never seen such an organized communications effort from my constituents since I’ve been in office,” said Senate Majority Whip Dan Hemmert, R-Orem. “It’s not the usual group of people who reach out on an issue. These are people I know.”

Driving the public outcry is a proposed resolution that terminates Utah’s current state of emergency because of the pandemic and seeks to block Gov. Gary Herbert from declaring a new one. There are more than a few lawmakers who seem receptive to the idea. So far, 29 legislators have signed on.

Conservative lawmakers have been chaffing at Herbert’s emergency declaration since April.

In a special session that month, legislators passed a bill requiring the governor to give them 24-hour notice before taking any emergency actions. In August, a group of lawmakers wanted to place new limits on the governor’s emergency authority, but didn’t have the votes to override an expected veto.

They did let Herbert’s original emergency order, issued in March, expire rather than voting to extend it. They had previously extended the emergency decree in May and June. When the declaration expired, Herbert simply issued a new one.

The push for the Legislature to step in and end the daisy chain of emergency declarations comes as COVID-19 cases are spiking in the state. Utah topped more than 1,000 new cases four days in a row last week, prompting Herbert to move Provo and Orem from yellow to orange restriction level. Utah County leaders also adopted a mandatory mask ordinance, joining Salt Lake and Summit counties.

Herbert’s use of emergency declarations has been a growing point of friction between the legislative and executive branches.

“A key part of this resolution is when do we return government to its normal functions?” says Sen. Dan McCay, R-Riverton, who is one of three senators so far to sign on to the proposal. “The governor has tried to balance all the issues with this, but it’s time to return to normal.”

Some lawmakers have argued that after seven months, the current situation is no longer an emergency and the Legislature should take the lead on setting policy for the state. Others complain that Herbert is expanding the definition of an emergency to include issues that are outside the scope of what the law intends.

“It should have been limited and a short duration,” said Rep. Kim Coleman, R-West Jordan, on her podcast. “He did some things that really weren’t under emergency conditions. There are some things he wants to do with the Department of Alcoholic Beverage Control licenses. He’s going to suspend some requirements for using telehealth. Hurry! Emergency!”

Coleman is aggressively promoting the proposed resolution on her social media channels.

“The Legislature sets policy and the governor implements it,” said Senate President Stuart Adams, R-Layton. “In a prolonged pandemic, at what point does an emergency stop being an emergency?”

The governor’s office issued a terse statement via email about the proposed resolution to curb his office’s response to the emergency.

“We are in regular communication with legislative leadership and if adjustments are to be made, they’ll be done in the same collaborative fashion that has guided our previous actions,” said a spokesperson.

Despite the tension, don’t expect lawmakers to act anytime soon. Adams said there haven’t been any serious discussion about holding another special session in October or November.

“It’s felt for a good period of time that we are operating as a full-time Legislature,” said Adams noting there have been four special sessions since the general session wrapped in March. Add the year-long process in 2019 that led to the aborted tax reform bill, and legislators and staff have been working at a clip that is far outside what you would expect from a part-time lawmaking body.

“I’m not sure that’s the most healthy process,” Adams added.

It’s also unclear what consequences may result if lawmakers were to end the current state of emergency. Herbert has justified the multiple extensions saying that letting the declaration lapse would put federal emergency funding for the state at risk, but lawmakers believe that may not be the case. Legislative leaders say their lawyers tell them most of the federal funding would be guaranteed by President Donald Trump’s nationwide emergency declaration, but there are other opinions that some funding for the Utah National Guard and a few other programs might be at risk. There’s enough ambiguity that lawmakers are hesitant to act.

At this point, all 50 states have issued emergency declarations.

Don’t expect this issue to go away, even if a special session doesn’t happen. The full Legislature will take this up when it meets in a regular session in January. And they’ll likely debate the very definition of what constitutes an emergency.

“We set up a government with multiple branches for a reason,” McCay said. “Who gets to define what an emergency is? I’m not sure we’re comfortable with the current malleable interpretation.”

But Herbert won’t be part of that debate. A new governor — Republican Spencer Cox or Democrat Chris Peterson — will be in charge then.