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Utah legislature scrutinizes governor's emergency powers, public health orders

Virus Outbreak Utah
Posted at 4:38 PM, Oct 20, 2020

SALT LAKE CITY — The Utah State Legislature has begun to scrutinize the governor's powers in a state of emergency as well as the reach of public health orders.

During a pair of hearings on Tuesday, lawmakers raised questions about where the limits should be and suggested a number of bills were in the works that could reign in the governor's emergency powers, as well as those of local health departments.

"We’re kind of in new territory and we need to make adjustments," Rep. Brady Brammer, R-Highland, told FOX 13 of a bill that he is contemplating.

The law does give the governor power to issue a state of emergency, but it's supposed to expire after 30 days. In the case of COVID-19, Governor Gary Herbert extended it and, after the legislature refused to extend it in August, he started issuing new ones. Most recently, Gov. Herbert ended the state of emergency and Utah's Department of Health issued a "public health emergency" order.

"It’s certainly serious," Rep. Brammer said of COVID-19. "But the state of emergency is intended more for short term, quick emergencies. It’s always been for fires, floods, earthquakes, those kinds of things."

Some lawmakers have been critical of the governor's invoking a state of emergency for seven months. During a meeting of the legislature's Interim Economic Development and Workforce Services Committee, Sen. Jake Anderegg, R-Lehi, suggested there were competing interests that must be balanced.

"We’re trying to respond as best we can to a health crisis and yet on the same account, everything that creates in our economy, our schools, the trickle down effect is problematic," he said. "And I think that as opposed to having all that power reside with some bureaucrats in a local or state health department, for a long sustained, longer than 30 days, we need to have some checks and balances in place to make sure things don’t go completely off the rails."

Not everyone on the committee agreed.

"As a body, we need to be cautious about talking about our public health experts as government bureaucrats," said Rep. Suzanne Harrison, D-Draper. "They’re trained professionals that have the health of our community at heart."

Sen. Anderegg said he was in negotiations with his legislative colleagues and the governor's office over any possible bills, as well as local health departments and state health officials.

Many lawmakers feel the legislature should be more involved in emergency management beyond 30 days. Gov. Herbert's office defended his power.

"Throughout the pandemic, Gov. Herbert has been careful to exercise only those emergency powers which were necessary to protect the health and well-being of Utahns," his office said in a statement to FOX 13. "We look forward to discussing these decisions with the legislature in hearings today."

In a hearing before the Utah State Legislature's Interim Government Operations Committee, lawmakers also scrutinized the far-reaching power of public health orders.

"The legislature gave the department the responsibility specific authority to investigate, control these epidemic infections and communicable diseases," said Dr. Joseph Miner, the Utah Department of Health's deputy director.

Public health orders can close restaurants for food safety violations or swimming pools for potential virus transmission. The orders are often issued without much fanfare, but they have gotten new attention during the COVID-19 pandemic, where mask mandates have been issued.

Lawmakers pressed state and local health officials about who issues orders, who they answer to and how far they can go. Under most orders, local elected officials serve on health department boards and do sign off on them. Failure to comply with an order is a civil violation, but repeat violations can become a criminal class B misdemeanor.

But health orders bypass the typical rule-making process where there is more legislative and public input. Dr. Miner defended the power to use health orders. Under questioning from Rep. Brammer, he paused over whether they had the power to mandate a vaccine.

Rich Saunders, the agency's interim director, interjected that they may have the authority, "but not the will."

"That's news to us," Rep. Brammer replied.