Legislative leaders push back against effort to end Utah’s COVID-19 emergency

(Spenser Heaps | Deseret News, pool) Gov. Gary Herbert speaks at a COVID-19 briefing at the Capitol in Salt Lake City on Thursday, Oct. 1, 2020.

A public push for lawmakers to step in and end Utah’s state of emergency due to the coronavirus pandemic is riling up Republicans on the Hill, some say for no good reason.

A proposed resolution to terminate Gov. Gary Herbert’s current emergency declaration began circulating among Republican lawmakers recently and quickly caught the attention of House leaders. The goal is something these leaders agree with, the way to get there is where there is a conflict.

“I think Utah should have the objective to be the first state in the country to end its emergency declaration. That’s a noble goal,” said House Speaker Brad Wilson, R-Layton. “But, over the weekend, this took on a life of its own and a lot of people signed on.”

So far, about three dozen lawmakers have publicly signaled their support. Several lawmakers who have not publicly endorsed the idea are being pressured through emails, phone calls and social media posts.

In response to that growing public pressure, House leaders convened small group meetings with Republicans earlier this week via Zoom to discuss the issue and what options they might have.

“I reached out to members of the caucus so we could clarify fact from fiction and let them talk it through,” Wilson said. "Everybody got a better understanding of the way the law works and what considerations they should be thinking about.”

Turns out, there was a lot of fiction for lawmakers to wade through.

While the proposal, if approved by lawmakers, would end Utah’s state of emergency, it does nothing to lift many of the COVID-19 restrictions currently in place. Many mask mandates would remain since those come from local health departments. Herbert would retain his authority to move areas of the state to higher or lower restriction levels.

If the resolution were to be adopted, there’s nothing to stop the governor from issuing another emergency declaration, which would remain in effect for 30 days. The resolution contains language that states the governor “may not lawfully issue subsequent emergency declarations or orders related to COVID-19.” While it may sound authoritative, it’s more of a suggestion as there’s no enforcement mechanism behind it.

There’s also the mistaken belief that lawmakers could adopt this resolution without having to meet in a special session.

“We have an opinion that a special session is not required to consider/pass a resolution,” said Rep. Kim Coleman, R-West Jordan, in a text message. If she does have such a legal opinion, legislative attorneys say it did not come from them. Right now, there’s no mechanism in state law for legislators to approve a joint resolution without being in an official session and having a quorum present. Coleman did not respond to a request to provide a copy of the legal opinion she said she has.

Coleman has led the online charge for lawmakers to adopt the resolution, pushing the issue aggressively on social media. Coleman unsuccessfully ran for Congress this year and will be giving up her seat at the end of the year.

Politically, the resolution is probably dead because there’s simply not enough support. Lawmakers would need 35 votes in the House and 15 in the Senate for it to pass. Before they get to that point, though, they need to find 50 House votes and 20 in the Senate to call themselves into a special session.

“This is a controversial issue in some of our districts,” said House Majority Whip Mike Schultz, R-Hooper. “That’s why you’re not going to get 50 votes [to begin a special session].” It’s highly doubtful Herbert would accede to a request from lawmakers to call a special session for the purpose of overturning his emergency declaration.

“This current fight accomplishes nothing. Why not save the political capital for the general session in January when we can actually solve the problem?” Schultz said.

Conservative lawmakers have been arguing that Herbert should end his emergency declaration for months, seeing it as infringing on their authority. Herbert said the declaration allows the state to tap into federal funds for the National Guard and for some other programs, but some legislators believe the financial benefits are far more minor.

Ironically, opponents of the governor’s emergency declarations had an opportunity in April to pass legislation to curb his power, but a misunderstanding by some of the same people behind the current resolution doomed it. HB3009, which was on the agenda during the April special session, would have limited the ability of local governments to implement lockdowns and other restrictions due to the coronavirus. It was yanked from the agenda after several right-wing Facebook groups argued the bill gave too much power to local governments.

This monthslong debate over emergency declarations does raise a legitimate question about the proper role of government, especially during an extended pandemic. Lawmakers say the Legislature should be making policy for the state and not the governor through emergency orders.

“We’re all in agreement that the emergency powers in the code never contemplated things lasting more than 30 days. We’re going to work on this and fix it,” Wilson said. “If something like this happens again, and we’re in a chronic state of emergency, the right thing is to call the Legislature into session and let them deal with policy.”