Even in a pandemic, Utah’s executive branch needs a check

This op-ed was published this week in the Deseret News.

The COVID-19 pandemic prompted a slew of executive orders and the exercise of rarely-used governmental powers across the country, including in Utah. Declaring an emergency in Utah, by law, allows the governor and other executive officers, including mayors, to assume additional powers, such as suspending laws passed by the Legislature. This power needs far more oversight than it currently has.

Additionally, public health officials have been able to wield near-dictatorial powers to control people and property without due process. Existing state law empowers them to control individuals for health reasons, without any appeal process or requirement to have knowledge of a person’s actual threat of infection.

Naturally, the exercise of executive power is checked by the legislative branch — at least in theory. For example, the Utah Legislature elected not to renew one of Gov. Herbert’s executive orders last year, with the intention to have the order expire along with the executive branch’s exercise of its increased powers.

However, the Legislature was circumvented on tenuous legal grounds when a brand new emergency declaration that effectively duplicated the previous one was issued. This side-stepping of the “checking” by another branch effectively gutted the legislative power, setting a dangerous precedent that undermines the separation of powers that protect people’s rights.

Utah’s existing emergency laws contemplated short-term emergencies (30 days or fewer) that needed a dynamic response from the executive branch where the Legislature would not have time to review, discuss, and reform laws as necessary. However, a prolonged pandemic and the government’s protracted response to it does not meet this criteria at all. Is it an actual emergency necessitating unilateral executive action if the people’s representatives have had ample time and repeated opportunities to meet and review what is happening and what laws need to be amended or repealed?

The Legislature needs to reassert its authority during this session to ensure that current and future pandemics and emergencies do not trigger excessive executive power. The law should be modified to make it even clearer that the legislative branch (for state or local governments) can limit, restrict or revoke emergency orders.

The law also needs to say that if the Legislature terminates or decides not to extend a state of emergency, then the executive cannot declare another one in response to the same disaster. The executive should not be allowed to ignore a legislative decision like that in the future as happened last year.

Fortunately, Rep. Brady Brammer is sponsoring HB169 to pursue these changes to the law. But legislators would be wise to build even further on this foundation.

For example, the governor’s ability to declare a state of emergency should be split into two types. One type would allow the state to obtain federal funding (which was the stated purpose of one of Gov. Herbert’s declarations) but not trigger any kind of expanded executive powers. The second type would be an additional level that would empower the executive branch with added powers (such as suspending laws, issuing orders, etc.) during brief periods of acute emergency that require a dynamic response. This way, the desire for federal funding would not trigger augmented executive power.

Additionally, the powers of public health officials need to be strongly curtailed so that they cannot control people and property. These officials should only have an advisory capacity to elected officials. Unseen and unaccountable bureaucrats should not wield such extreme authority over people, especially when there is no due process afforded those whose lives are so deeply affected by these closed-door decisions.

And if the Legislature does decide to extend a state of emergency, then an economic analysis should be performed and published to inform the public about the anticipated impact of continuing the executive order mandates associated with the existing emergency declaration. Destroying businesses and crippling the economy has a cost, and that data should be part of the public debate.

These measures would improve the law, protect people’s rights and still allow government officials to dynamically respond to short- and long-term problems that arise. We can protect the public and navigate difficult circumstances without having unchecked executive power.