Updated 5:52 p.m. MDT 4/16/2020
The governor would have to notify legislative leadership of an executive action during a pandemic at least 48 hours before they announce it, under a new bill passed by the Utah House of Representatives Thursday.
If there is an imminent danger of loss of life, the notification requirement goes away.
The bill, passed during a virtual special session, also allows the Legislature to vote to overturn an executive action through a joint resolution. If the Legislature is not in session, lawmakers would have to call a special session to do so.
“It is a good balance between the executive branch and the legislative branch,” said House Majority Leader Francis Gibson, R-Mapleton, the bill’s sponsor. “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. Let's see if we can figure out something together.’”
The bill highlighted the apparent friction between the two branches. Some lawmakers had complained they only found out about the decision to extend soft school closures for the rest of the school year just 15 minutes before Gov. Gary Herbert officially announced it.
“This [bill] may lay some groundwork to be able to have a better working relationship with our governor,” Gibson said.
But other lawmakers said the bill is an overreach of power by the Legislature.
Rep. Merrill Nelson, R-Grantsville, said the governor’s office can respond more quickly to emergencies than the legislative branch can.
“When in this bill we require 48 hours notice and consultation, it's going to slow down the governor in responding to emergencies,” Nelson said. “It's going to burden the exercise of his authority to execute laws, or in some cases suspend operation of laws. And so we're burdening the exercise of his authority, unduly and unnecessarily.”
However, the bill’s sponsor argued that the exemption for an imminent threat of loss of life preserves the balance of power. He added that none of Herbert’s executive actions so far have fallen into that category, so the legislature could have been notified of them in advance.
Herbert’s office did not immediately reply to a request for comment Thursday, but he said Tuesday, before reading the bill, that it could infringe on the state government’s separation of power.
“I have no problem with trying to communicate and trying to give FYIs to the Legislature but we need to make sure we keep those separation of powers in the correct balance,” Herbert said Tuesday.
“The bill appears to be an attempt on the part of the legislature to formalize communications and notifications with regards to certain emergency actions on the part of the governor,” Anna Lehnardt, a spokeswoman for Herbert’s office, said in a statement. “We have concerns with elements of the bill and its impact on executive branch operations. We are working in good faith with Legislative Leadership to address those now.”
The bill's floor sponsor, Senate Majority Leader Evan Vickers, circled the bill Thursday afternoon, temporarily stopping the Senate from voting on it, and said he was working with the Governor's Office on potential changes.