While recognizing the independence and authority of the Utah governor in times of pandemics, one of the bills in the Thursday special legislative session says the governor — in the current case, GOP Gov. Gary Herbert — will tell legislative leadership about his plans for executive orders two days before issuing them.
And it gives lawmakers the express power to stop any action a governor may take in dealing with a disease emergency.
In short, the Legislature can stop whatever Herbert is planning to do in response to an epidemic or pandemic before he can do it — if they act quickly — or reverse what the governor has done soon after his order takes effect.
HB3005, sponsored by House Majority Leader Francis Gibson, R-Mapleton, and Senate Majority Leader Evan Vickers, R-Cedar City, says the governor, in dealing with an “epidemic or pandemic disease” will notify the “legislative pandemic response team” at least 48 hours before issuing an executive order concerning the state’s fighting of the disease.
The response team is the Senate president, House speaker, and the leaders of the minority parties of each body — or the four foremost partisan leaders of the Legislature.
Now, the bill says the governor will only advise the leaders of his/her plan to issue an executive order. The governor can still issue the order without Legislative action.
And the bill further says the governor doesn’t have to follow the notice requirement if giving 48-hour notice would risk life — if that’s the case, then the governor could act more quickly to deal with the problem.
However, as UtahPolicy.com has already pointed out, in cases where the legislative leaders may strongly disagree with what the governor plans, the leaders — in that 48-hour time frame — could poll their members and, if two-thirds of the Legislature agrees — call themselves into a special session (even remotely and online, as needed).
UtahPolicy.com is told legislative leaders don’t have to wait for 48-hours for agenda(s) to be made public BEFORE they come into a special session — thus giving them time to stop a gubernatorial emergency order is they act swiftly.
The bill says by legislative action, the House and Senate “may terminate by joint resolution” (which takes a majority vote) any order, rule, or regulation made by the governor’s executive order.
The Legislature can also void any “directive, recommendation or another action” made by the governor.
And any action by the governor to “suspend or modify a statute” in an emergency.
So, if the Legislature were to decide that any action the governor takes to fight against disease, by majority vote, they could reverse it, either before it takes place or soon afterward.
Senate President Stuart Adams, R-Layton, said Tuesday the bill isn’t meant to curb Herbert’s authority in an emergency. But, he believes some of those decisions that aren’t so time-sensitive could be better if lawmakers had a chance to weigh in.
“Perhaps we ought to have a good communication process, especially on things that are policy-oriented,” said Adams. “If it isn’t something critical, we think it would be good if he gave us a couple of days notice.”
“The governor makes good decisions, but he doesn’t have 103 other legislators weighing in. Our founding fathers put together a larger body to make policy so these things can be better refined. Sometimes when one person makes a decision, there are unintended consequences,” Adams continued.
At his daily coronavirus update press conference, Herbert on Tuesday was asked about the bill. He said he hasn’t read the language — it became public just before the 1:30 p.m. presser.
He said he has no problem telling the Legislature what he plans in the way of executive orders in an emergency.
But he said there is the question of separation of powers between his office and the Legislature, and he’ll always act to protect the executive authority the Constitution gives him.
Sometimes he must act “in a hurry” to meet a crisis, he said.
Herbert has been criticized by several groups — including rural southern Utah county officials — for trying to reduce the size of groups meeting in public, or private, in an effort of “social distancing,” including asking some businesses to close.
What’s interesting is that the bill says the Legislature may act to stop the governor from even recommending that the public or individuals take specific actions.
That seems to stop the governor’s free speech — he or she couldn’t just say what he believes is the best action for citizens to take concerning fighting the disease.
For example, unlike several other governors or mayors or county officials, Herbert has not ordered a shutdown but strongly recommended social distancing (Stay home, stay safe), including asking that all restaurants close for sit-down meals. However, he wants them to remain open via curbside meal pick-up if they can.
He has also recommended that all essential businesses have employees work from home — although he has not dictated what is essential business. He now asks that all Utahns wear masks when in public.
Still, the bill aims to either warn Herbert about some of the actions he’s taken fighting the virus or allows legislative leaders two days to consider what they should do before any of Herbert’s emergency powers orders take effect.