Battle looms over executive authority in Legislature

Utah Rep. Joel Ferry is among numerous lawmakers committed to curbing Gov. Spencer Cox' emergency powers during the ongoing general session of the Legislature.

SALT LAKE CITY – In his first State of the State message Thursday, Gov. Spencer Cox warned Utah lawmakers that he was “going to veto some of your bills. Probably more than my predecessors.”

Later that same evening, Utah Rep. Joel Ferry suggested that pending legislation to curb the new governor’s emergency powers might be the target of one of those vetoes.

It’s going to be a fight,” Ferry predicted, referring to the efforts of the lawmakers to limit executive authority in an extended state of emergency.

“Gov. Cox has indicated a willingness to work with us,” Ferry said during a virtual town hall meeting Thursday hosted by the Cache County Republican Party. “But we’re going to push hard to ensure that a lot of that emergency power remains in the legislative branch where it belongs.

“Yes, we’re a much more deliberative and slower-moving branch of government. But that’s a good thing in some cases.”

Along with a tax cut, legislative leaders have made no secret of the fact that one of their strategic goals for the current general session is to reaffirm the Legislature’s role in any prolonged state of emergency like the ongoing coronavirus pandemic.

Ferry explained that lawmakers have no dispute with the governor’s authority to make executive decisions in a short-term emergency that might arise from a flood, earthquake or other natural disaster.

Within days after taking office, Cox declared a state of emergency to head off the threat of local political unrest following the Jan. 6 riot on Capitol Hill in Washington, D.C. That perhaps-hasty decision resulted in hundreds of Utah National Guard personnel and Highway Patrol officers comically facing off against a few score of peaceful protestors during the weekend of Jan. 9 and 10.

“The state of emergency bills we’re working on won’t address a short-term state of emergency covering just a few days,” Ferry acknowledged. “What they will do is address the broader and more concerning issue of these never-ending executive orders…that place us in a constant state of emergency without any sort of relief in sight.

“That sort of thing has caused a lot of turmoil in our communities where we want to get back to school, back to work and back to some sense of normalcy.”

Ferry is in the midst of this legislative crusade because the second-term representative serves on the House subcommittee that oversees appropriations for Utah’s executive and criminal justice functions. Ferry had made the issue of executive over-reach a focus of his recent re-election campaign in House District 1, which includes the Cache County communities of Clarkston, Cornish and Newton.

“We’re dealing with the executive branch,” Ferry said Thursday, “but there’s also legislation coming up to deal with unelected bodies like our local health departments and what their authority should look like in a pandemic situation versus a short-term emergency.

“We’re also looking at the ability of the executive branch to let contracts and spend money during an emergency, so that there’s some sort of review over that authority rather than there being no checks and balances.”

Without getting into specifics, the Legislature’s leaders – House Speaker Brad Wilson, R-Kaysville and Senate President Stuart Adams, R-Layton – have both signaled their general support for a realignment of emergency authority between the executive and legislative branches of the state government.

Adams has previously called former Gov. Gary Herbert’s unilateral response to the coronavirus pandemic a breach of the constitutional principle of separation of powers.

“We want the executive branch to have the authority and flexibility to move quickly when there’s a fire, flood or other emergency that’s going to be a short-term situation,” Ferry conceded. “We don’t want to have to call a special session of the Legislature to take action for that sort of thing.

“At the same time, in a drawn-out situation like the ongoing pandemic, (the Legislature) wants to make sure that our response is appropriate.

“Hopefully, we can come up with something that ensures a proper balance of authority.”

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