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Lawmakers take aim at limiting emergency powers

Bill would curtail sweeping emergency authority of governor and health officials.

(Rick Egan | The Salt Lake Tribune) Nurses test for Covid-19 at the Test Utah site in Herriman, on Friday, Feb. 5, 2021.

Utah legislative leaders on Tuesday unveiled a new proposal to rein in the emergency powers of the governor and state and local health departments, saying the state’s current laws are not designed to grapple with long-term events like the COVID-19 pandemic.

SB195 from Senate Majority Leader Evan Vickers, R-Cedar City, would make a number of significant changes to how the state handles long-term emergencies, including limiting how long an emergency declaration remains in effect and granting authority to the Legislature to override those declarations.

Vickers argues the bill would set a more appropriate balance between the legislative branch, which creates policy, and the administrative branch, which is tasked with implementation.

“The one thing that 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,” Vickers told reporters during a media availability on Tuesday. “And so it’s appropriate that we would have some oversight over those powers.”

Senate President Stuart Adams struck a similar chord, arguing that the bill would better align state policy with the intentions of the country’s founding fathers, who put policy decisions in the hands of a “larger, more deliberative body” rather than in those of a single person.

“As they came from England and saw a dictator or ruler making all the decisions, they wanted to the policy being made by individuals closer to the people and that’s why they formed these legislative branches to set policy and they got it right,” he said.

(Leah Hogsten | The Salt Lake Tribune) Senate Majority Leader Evan Vickers, R-Cedar City, right, is commended by Senate President Stuart Adams, R-Layton, left, for Vickers' SB195 bill Feb. 16, 2021. The bill would rein in the emergency powers of the governor and state and local health departments, saying the stateÕs current laws are not designed to grapple with long-term events like the pandemic.

Under the bill, a public health emergency order would be valid only for 30 days but could be ended earlier by a joint resolution of the Legislature or if the emergency has passed. Emergency orders could be extended beyond 30 days by the Legislature, but they must have a definite end date. If the emergency order is terminated by lawmakers, it could not be reinstated by public health departments.

A county legislative body also would be empowered to end a public health emergency declared by a local health department earlier than 30 days. And the bill would cap fines for individuals violating public health orders at $150, down from up to $10,000 currently.

A health authority could ask to extend a public health emergency declaration beyond 30 days under the bill, so long as it provides written notice to the Senate President and Speaker of the House.

Asked by reporters whether the bill would limit the role of public health leaders in a pandemic, Adams said that could be a “matter of perspective” but noted that their existing powers would remain in place during the first 30 days of such an emergency. Afterward, their input would continue, but in an advisory capacity.

“We have many people in the state that give us advice,” he said, pointing to the example of “the Department of Transportation; they recommend speed limits — we set them.”

Sen. Luz Escamilla, D-Salt Lake City, also dismissed those concerns, noting that she sees the proposal as moving decision-making to people who can be held accountable by the voters.

Vickers’ proposal would also restrict the governor from taking executive action in response to a long-term emergency, unless he or she informs a newly-created legislative “emergency response committee” at least 24 hours beforehand. That committee could approve or nix an extension of a public health emergency declaration.

(Leah Hogsten | The Salt Lake Tribune) Senate Majority Leader Evan Vickers, R-Cedar City, was commended by Senate leaders and a minority leader for Vickers' SB195 bill Feb. 16, 2021. The bill would rein in the emergency powers of the governor and state and local health departments, saying the stateÕs current laws are not designed to grapple with long-term events like the pandemic.

“This bill says if an emergency is going to last more than 30 days, the Legislature needs to be consulted and decide whether or not the state of emergency should remain,” says House Speaker Brad Wilson, R-Kaysville.

The proposed legislative committee would be made up of the current members of the Executive Appropriations Committee, plus other members appointed by the House speaker and Senate president.

Lawmakers have been frustrated with the length and scope of the coronavirus emergency, but have been unable to find a legislative solution. This proposal comes out of discussions between legislative leaders and the governor’s office, which did not respond to a request for comment on Tuesday. A spokesperson for Salt Lake City Mayor Erin Mendenhall said she was not prepared to take a position on the just-released legislation. Salt Lake County Mayor Jenny Wilson’s spokesperson said she would not comment until she had reviewed the bill further.

“I think everyone sees the system for emergencies that we have set up just wasn’t built for a protracted emergency,” says Rep. Brady Brammer, R-Highland. “We’re just trying to find the right solution.”

Vickers says the bill recognizes that there are instances where the executive branch has to be nimble in responding to emergencies in a way the legislative branch can’t, and for the first 30 days of an emergency, “there’s no intrusion upon that process.”

“We don’t want to have a situation where we’re disrupting a chemical spill [cleanup] or some of those other immediate [issues],” he said.

But after the 30 days have passed, he said there’s a need for more accountability and a more deliberative process.

A statement released from the House and Senate leaders said the proposed changes “are not a condemnation of any agency, individual or action” and noted the collaborative process the bill went through, though it added that the bill will likely “continue to be refined as the bill goes through the legislative process.”

SB195 has yet to be introduced but already appears almost certain to pass in some form.

Most states have some sort of check on executive emergency powers, according to a roundup by the National Conference of State Legislatures. It summarizes Utah’s by saying that the governor cannot extend an emergency declaration beyond 30 days without a resolution by the Legislature, but that hasn’t precluded the executive from doing so by issuing new orders.

The bipartisan group also said that legislatures in at least 37 states are considering bills or resolutions that would limit governors’ powers or executive spending during the COVID-19 pandemic or other emergencies.

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