At the beginning of March, before Utah had any confirmed coronavirus cases, Gov. Gary Herbert stood at a podium in the state’s emergency operations center in the basement of the Capitol. He had an announcement.
“It's a matter of what can we do to mitigate the spread and minimize the infection that we have in our communities,” Herbert said. “In order to do that, we've created a task force.”
The Coronavirus Task Force, headed by the Lieutenant Governor, includes representatives from the Executive Branch — like the Department of Health and Board of Education — and the business and faith communities. But lawmakers didn’t get a spot.
A month and a half later, the state has more than 3,000 confirmed cases, 27 people have died, and Gov. Herbert has made several announcements drastically altering daily life. He suspended in-house dining at restaurants, asked Utahns to stay home except for essential travel and extended a soft-closure of schools until the end of the academic year.
Some lawmakers have complained that they weren’t kept in the loop on those decisions, like House Majority Leader Francis Gibson, R-Mapleton.
“There are several executive orders which we as leadership found out about … 15 minutes prior to the declaration that this is going to happen,” Gibson said.
So Gibson is sponsoring a bill that requires a governor to consult with legislative leadership about any executive action during a pandemic at least 48 hours before it’s announced. If there’s an imminent threat of loss of life, the notification requirement doesn’t apply.
“It is a good balance between the executive branch and the legislative branch,” Gibson said. “We understand it's your right and your role and your ability to make certain executive calls. We’re saying, ‘Hey, let's work together. Give us a 48-hour notice.’”
But Herbert is not so sure it’s a good balance.
“I have no problem with trying to communicate and give FYIs to the Legislature, but we need to make sure we keep those separation of powers in the correct balance,” Herbert said.
That bill passed the House and has been circled in the Senate, pushing off a vote while lawmakers negotiate with Herbert on possible changes.
Emergency response is typically the governor’s job, because they can act more quickly than the legislature, University of Utah Political Science Professor Matthew Burbank said. However, it isn’t entirely clear if this bill crosses any legal boundaries.
“The constitution gives the governor executive powers, but those aren't spelled out in enormous detail,” Burbank said. “What you see here is that there is a little bit of a gray area as to something like declaring an emergency. Does the governor have to consult with legislative leadership or not?”
If the bill is signed into law, Burbank said it could potentially end up in court.
During its first 2020 special session, the Utah Legislature has also taken up another bill to get lawmakers more involved in the Governor’s response. It’s less controversial and was signed into law Friday. It creates a commission, which includes members appointed by legislative leaders, tasked with creating a plan to reopen the economy. They have until this Wednesday to submit the recommendation to the Governor. If Herbert doesn’t implement it, he has to present data that explains why.
The law was passed the same day that Herbert’s own Economic Task Force announced plans to potentially ease social distancing restrictions in early May.
“That's probably just an example of kind of governmental overkill,” Bubank said. “This is probably one commission more than we really need in this case.”
But Lt. Gov. Spencer Cox argued it’ll be good to have more input.
“It’s a very collaborative process,” Cox said. “As much as it’s fun to have the executive branch and the legislature pitted against one another, and certainly there are some of those, this is not one of those.”
Burbank said there’s not really a practical reason for the legislature to involve itself more in the state’s emergency response. It’s not one of its constitutional responsibilities and there’s no partisan divide between Utah’s executive and legislative branches.
“It's not clear that it makes a huge amount of sense to have the legislature play that role,” Burbank said. “But I think the legislative leaders want to assert that they can.”