Utah lawmakers continue to debate governor’s emergency powers as coronavirus wears on

(Leah Hogsten | Tribune file photo) In this April 16, 2020, file photo Senate President Stuart Adams, R-Layton, and Senate workers conduct business during the Utah Legislature first-ever digital special session at the Capitol. Months after the first coronavirus case was recorded in Utah and a state of emergency was declared, lawmakers are still trying to put limits on the power of the governor to take emergency actions during an extended pandemic.

As they continue to face pressure from constituents who want them to end the COVID-19 state of emergency, Utah’s lawmakers met again Tuesday to discuss ways to rein in the executive branch’s powers but indicated there’s still a lack of consensus on how to move forward.

Sen. Jake Anderegg, R-Lehi, said he and other lawmakers are working to find compromise on the issue among the House and Senate as well as the governor’s office and state and local health departments. But without language drafted, he said any changes to the state’s Emergency Management Act likely won’t come until next year’s general legislative session.

“It may not happen as fast as some people would like, but the sky is not falling; we’re not all going to be dead tomorrow,” Anderegg said Tuesday during a presentation to the House Economic Development and Workforce Services interim committee. “At least we hope. If we are, we’ve got bigger problems, right?”

Several lawmakers have argued over the past few months that the emergency powers granted to the executive branch contemplated 30- to 90-day emergencies — like fires and floods and earthquakes — rather than monthslong ones like a pandemic.

Anderegg said there’s a desire to preserve the governor’s powers in cases where the executive branch needs to move quickly to respond to a crisis. But he said the state’s Emergency Powers Act is “wholly inadequate” in outlining how the state should respond to longer-term challenges.

“There’s nothing in the code, zero. There’s absolutely nothing that has anything to do with what a proper response would be policy-wise for a long, sustained emergency, so I do think we need to address this,” he said.

Sen. Dan McCay, R-Riverton, used the extended analogy of a house fire during his remarks to the committee to highlight when he thinks government should be involved in a crisis and when it should step back.

He said that when a blaze first begins, “everyone is on the same page” about the emergency, from the homeowner to the firefighters to the neighbors and the insurance company that handles the claim.

“Now the emergency itself is — I would argue and I think the policy should capture this — is when everyone’s on the same page,” he said. “Because at that point, the government is the actor. The government in that situation is in the primary responsibility to do something outside the norm, make an exception.”

Once the embers die down and the fire has been extinguished, though, he argued that existing code and processes would be sufficient to manage the crisis moving forward.

“Can you imagine a situation where the firemen felt like they had to stay on the site until the house was completely rebuilt? That’s ludicrous,” he said. “Or the police? To stand there at the house to make sure no one is injured at the house? I get it. It would be the safest thing to do. But that’s ridiculous.”

In connecting his analogy to the coronavirus pandemic, McCay noted that the state’s code already gives the Health Department the power to manage an ongoing public health crisis, including the ability to shut down government buildings and schools, without the need for executive action.

The monthslong debate over emergency powers also includes questions about the proper role of government, as lawmakers say the Legislature should be the one making policy for the state rather than the governor or the health departments through emergency orders.

Not all power should rest with “some bureaucrat in a local or state health department,” Anderegg said. “I think for a prolonged, sustained, longer than 30-day public health crisis response management, we need to have some checks and balances in place to make sure things don’t go completely off the rails.”

Anderegg indicated, however, that he is looking at including some provisions in the bill that would deal with the use of emergency powers in case of COVID-19 case spikes.

During a separate committee hearing Tuesday afternoon, lawmakers questioned health department officials about their authority and accountability to the public. During a line of extended questioning, health department leaders acknowledged their broad powers to close schools and restaurants, issue civil penalties for repeat offenders who don’t follow their public health orders and even potentially to mandate a vaccine to control the spread of a disease.

Utah Department of Health Director Richard Saunders said the question of “the boundary of control” for health departments is “a very important question we all need to be asking right now.”

He and other health department officials who spoke at the Government Operations Interim Committee said they have worked in conjunction with elected officials to issue orders and noted that they haven’t heard of any civil penalties or fines associated with coronavirus rules issued by health departments.

But Rep. Brady Brammer, who was pressing health department officials for answers to the scope of their authority, said he was concerned their reach had violated the state’s nondelegation doctrine, “where we have a constitutional provision that we cannot delegate the authority of the Legislature without clarity.”

“I think we’re both on the same page that we really need to be careful on figuring out where those lines are," Brammer, R-Pleasant Grove, said to Saunders.

During public comment at the meeting on Tuesday, several Utahns echoed those concerns and said they felt health departments have broad power to affect people’s lives but little accountability to voters.

Brittney Moon, a Santaquin resident, said she feels it’s difficult to access public health officials.

“I talked to my government officials that you’ve said have some sway in this but they can’t void or overturn these decisions and then I said, ‘OK well, can we fire these people?’ And they said, ‘Yes, but here’s the deal, there’s a board of nine people,’" she said. "So now I have to try to go through nine people to have any effect on this health director. So it’s like they’re two times removed.”

Utah has been in a state of emergency since the day the first coronavirus case was diagnosed in the state in March. The Legislature in June approved a resolution extending the state of emergency, though not all lawmakers were in support of the measure. By August, support for extending the emergency order had declined further and lawmakers declined to do so, leaving it to the governor to reissue his emergency mandates, which he did.

Today, Utah is under a “public health order” mandated by the Utah Department of Health and the governor as part of the state’s new strategy for addressing the pandemic. That order is slightly different from a state of emergency in that it does not need to be extended by the Legislature but it fulfills a similar legal purpose as the previous mandates.

While some have raised concerns that ending the state of emergency would lead Utah to lose out on millions in federal dollars available to help states weather the coronavirus, Anderegg said that isn’t the case.

“We contacted our legislative research and general counsel and they contacted FEMA, they contacted social services to find out if those monies would be in jeopardy and the answer was an unequivocal 'no’ it would not be in jeopardy,” he said.

Opponents of the governor’s emergency declarations had an opportunity during a special session in April to pass legislation curbing his power. But HB3009, which would have limited the ability of local governments to implement lockdowns and other restrictions due to the coronavirus, was pulled from consideration after several right-wing Facebook groups argued it gave too much power to local governments.

Anderegg expressed frustration about that bill on Tuesday, saying that “the same people who eviscerated me personally on HB3009 are the same people who are up in arms that the Legislature hasn’t stood up to the big, mean governor.”

“Be consistent,” he said. “Otherwise, you’re going to become white noise as far as I’m concerned. So if that pisses you off, I’m sorry. That’s how I feel. Be consistent. If you want to work with us, get into the system and work with us. Otherwise, you know what, I don’t have time for you.”

As lawmakers move forward to tweak the state’s Emergency Powers Act, Rep. Suzanne Harrison, D-Draper and a physician, cautioned her colleagues to ensure they don’t inject politics into a public health crisis.

“I just think as a body we need to be cautious about talking about our public health experts as government bureaucrats,” she said, referencing Anderegg’s earlier statement. “They are trained professionals that have the health of our community at heart and have the expertise to know when something needs to be done to save lives, whether it’s waterborne illness or infectious disease.”