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Faced with pressure to lift Covid restrictions, Utah gov. opts to restrict his own powers

Utah's governor has already agreed to a reduction in his pandemic powers; other governors are being pressed, as well.
Image: Spencer Cox
Spencer Cox, then the lieutenant governor of Utah, during the daily briefing on the state's efforts to fight Covid-19 at the State Capitol in Salt Lake City on June 25.Rick Bowmer / AP file

Faced with a Republican-dominated Legislature that was demanding an immediate end to all Covid-19 restrictions, the new governor of Utah worked out a deal that allowed him to delay lifting the mask mandate and bought him an extra month to get thousands of residents vaccinated with the protections in place.

In exchange, Gov. Spencer Cox, who is also a Republican, did something that apparently no other governor has voluntarily done since the start of the pandemic — he signed a bill that restricts his emergency powers, experts in Utah politics said.

Cox told the Deseret News of Salt Lake City that his team pushed for April 10 "because we wanted to get as many people vaccinated as possible" before the mask mandate was removed. "That was the argument I made to the Legislature," he said.

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While Cox appears to be the first governor to have signed a bill like that, Utah is not the only state where legislatures have started clawing back the emergency powers they granted governors after the pandemic was declared last year.

In Arkansas, Connecticut, Massachusetts, Minnesota, Kansas, South Carolina and even Texas, Republican legislators are pushing to do the same, according to a survey of available news reports.

"Balance needs to be restored," said Minnesota state Sen. David Osmek, a Republican who sponsored a bill that would limit Gov. Tim Walz's authority to impose mask mandates and restrictions on schools, businesses and social gatherings.

In New York, the Democratic-dominated Legislature voted last week to curb Gov. Andrew Cuomo's pandemic-related emergency powers as he has been resisting calls to resign over allegations that he sexually harassed at least a half-dozen women and failed to report the true number of Covid-19 deaths at nursing homes.

And in Texas, Republican Gov. Greg Abbott said he was open to rolling back his office's sweeping emergency powers for future disasters, although not necessarily this one. He has been harshly criticized by some in the GOP who say he has imposed too many pandemic restrictions and by Democrats who say he has imposed too few.

"What we are working on — and we've already begun working with legislators — is approaches to make sure we can pre-plan how a response would be done, but it has to be done in a way that leaves flexibility to move swiftly," Abbott told The Texas Tribune last month.

In general, it has been Democrats and public health experts who have been urging states to go slow on lifting pandemic restrictions, while Republicans have been pushing more aggressively to reopen schools and businesses that are still struggling to recover from the pandemic.

"It's not as simple as just saying, 'Stop the peacetime emergency,'" Walz, a Democrat, told reporters. "Because there will be a cascade of effects that will happen, and there needs to be a firewall built against that."

Summer Johnson McGee, dean of the School of Health Sciences at the University of New Haven in Connecticut, agreed.

"The ability for governors to act swiftly via executive orders is a critical public health power that is necessary in a pandemic," McGee said. "Subjecting public health policymaking to the slow grind of the legislative process in a dynamic global pandemic presents a real risk that states will no longer be able to act quickly enough to respond to changes in local health conditions."

While the pace of Covid-19 vaccinations has accelerated rapidly under President Joe Biden, the pandemic is far from over.

"As the prospect of a fourth wave looms and the race against Covid-19 variants is under way, we are still living in a public health emergency," McGee said. "Reducing executive authority now runs the risk that states will be subject to legislative processes that are highly politicized or slow that may cause setbacks in our public health responsiveness."

In Utah, Cox was under pressure to lift the mask mandate and other pandemic restrictions that rankled arch-conservatives in the conservative state when he signed S.B. 195, which gives the Legislature the power to extend or end emergency orders aimed at stopping the spread of the coronavirus.

It also limits public health orders to just 30 days.

Why would Cox agree to curb his powers? Because even though he is a conservative Republican — albeit one with an independent streak — a veto-proof majority of conservative Republicans in the Legislature has had it with the pandemic restrictions, said Chris Karpowitz, a political science professor at Brigham Young University in Provo, Utah.

"My sense of it is that the governor would have preferred to wait to lift the mask mandate, to wait until more people were vaccinated," Karpowitz said. "But there have certainly been politicians on the far right in the Legislature who have been arguing for fewer constraints, arguing against mask mandates and closures of schools and businesses. Some of these people were pushing to reopen in May [last year], and with what happened afterward, they came out looking very poorly."

Utah has reported 378,379 Covid-19 cases and more than 2,000 deaths, according to the latest NBC News figures. The bulk of the infections and deaths came after the GOP-led Legislature began pushing to reopen the state last spring under Cox's predecessor, Republican Gov. Gary Herbert.

Cox, who took office in January, has presided over one of the country's most efficient Covid-19 vaccination programs, with 88.09 percent of the available doses having been administered, according to Becker's Hospital Review. But as of Tuesday, Utah also had the lowest percentage of residents who had been fully vaccinated, at just 8.3 percent, according to New York Times data.

Jason Perry, director of the Hinckley Institute of Politics at the University of Utah, said that while Cox and the Legislature are not that far apart on mask mandates and other Covid-19 restrictions, "a much larger issue developed as these key players wrestled over who ultimately decides when they are put in place and when they should be removed."

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"Although they share the same party, our legislature asserted, through a new law, that the emergency powers delegated to the governor are intended to be limited and time constrained," Perry said in an emailed response to questions. "This became a separation of powers issue more than a political party issue even though the credit or the blame for our state response to the pandemic will likely fall at the feet of the governor as it has in other states."

Cox did not immediately respond to requests for comment. In an interview with the Deseret News, he insisted that "we didn't give away any power, because the Legislature always had the ability to do this."

"Emergency powers belong to the legislative branch," Cox said. "They grant them."

Thirty days is plenty of time, and if something like a spike in Covid-19 cases occurs, "we can always bring the Legislature back," he said.

Karpowitz said it remains to be seen just how tightly the new law ties the governor's hands.

"The current bill addresses some of these issues while still maintaining at least some executive ability to respond to emergency circumstances as they arise," Karpowitz said. "Whether the bill gets the balance right is another question, and Governor Cox's response probably partly reflects a good-faith compromise on these issues. But it also reflects the governor's weakness when the Legislature is united in asserting its power."