The Utah Legislature terminated mask mandates in Salt Lake and Summit counties Jan. 21 through SJR3, despite conflicting opinions from local leadership. Earlier this month, Gov. Spencer Cox enacted HB183 which suspended the “test to stay” requirement in public schools and has state instead of local leaders making the final call on whether a school district goes remote.
Cities and local governments are “creatures” of the state and have permission from the legislature to make decisions, University of Utah political science professor Dave Buhler said.
“But if the legislature doesn’t like the way they’re exercising their power, they can swoop in and change the rules,” Buhler said.
Buhler has seen plenty of examples throughout his career in politics of conflicting decisions between the local and state level. As a state senator, he has run bills to override city council decisions he didn’t like. But a few years later as a Salt Lake City Council member, he had a different view and thought: “Legislature leave us alone, we got this.”
He shared an old saying in politics: “Where you stand depends on where you sit.”
Angela Dunn, MD, is a Salt Lake County Health Department executive director. Dunn acknowledged the legislators had the power to overturn the county mask mandate in a Jan. 20 interview with KSL NewsRadio.
“I do think it’s unfortunate given their priority to keep control at the local level for the COVID response,” she said.
According to Buhler, it’s not an overreach of state power for the legislature to terminate local public health orders because they have the authority to do so.
“It’s not that unusual, but I do feel like the legislature over time has become more and more assertive, both over local governments and in dealing with the state executive branch,” he said.
Local control ‘guardrails’
HB183 sponsor Rep. Jordan Teuscher, R-South Jordan, said local control is extremely important to him, but as a state legislator, it’s part of his job to put some “guardrails” around it. SB107, enacted in March 2021, already had state leaders approve a district’s request to go remote. The new law gives additional procedures for districts to follow and requires permission from the governor, Senate president, House speaker and state superintendent before going online.
Teuscher said school districts did not have enough COVID-19 tests to implement test to stay during omicron’s peak when it was required by law. State leaders decided to suspend test to stay in response to these concerns. If districts want to do a test to stay they can, but there’s not a requirement anymore.
“So in some ways, it gave back local control on test to stay, and then just set forth the parameters on how someone would request remote days,” he said.
But state involvement in local issues like education and public health is concerning to some.
“I feel that this is more political than it is anything else,” said Steven Sylvester, a political science professor at Utah Valley University.
Parents already have a democracy — school boards and city councils — where they can voice their objections, Sylvester said. “Why does the state have to get involved?”
According to Adam Brown, a BYU political science professor who studies state constitutional politics, there’s no question of whether the legislature has the authority to set general policies on a local level. For example, states have independent authority while cities, counties and school districts only have delegated authority from the state. States have their own constitutions, and cities don’t.
But HB183 raised some questions of constitutionality as it gave the House speaker and Senate president vetoes over certain school district decisions, even though they do not have executive authority to do so under the state constitution.
“The Utah Constitution gives the Speaker and Senate President authority to organize the activities of their respective chambers but not to make binding decisions on their own authority,” Brown tweeted. “Changing this would presumably require an amendment to the Utah Constitution, not just a statute.”
Attorneys Brent D. Wride and Paul C. Burke called for Gov. Cox to veto HB183 in an op-ed to the Salt Lake Tribune and claimed it violated Utah’s Separation of Powers Doctrine by assigning executive powers to legislative officers.
“The constitutional defect of House Bill 183 is that it violates our state constitution by granting legislative officers the power to interpret and enforce the statute,” they wrote.
In response, Teuscher and floor sponsor Sen. Todd Weiler, R-Woods Cross, wrote in another op-ed that Article III of the Utah Constitution requires the legislature to establish and maintain the public education system: “Simply put, the legislature decides what the system will be, and any exceptions that might apply.”
Some of Utah’s political science professors see legislature involvement in local issues as a larger pattern both in the state and nationwide.
“Anytime the federal government proposes an action that would force the states down a particular path, you can expect Utah legislators to kick and scream and insist on the virtue of local control,” Brown said.
But in Utah, that faith in local control does not extend to restricting the legislature’s oversight of cities, counties and school districts, he said: “And maybe that’s logically inconsistent.”
University of Utah political science professor Josh McCrain said state interference in local issues like education has no founding in actual conservatism. It is paradoxical to classic beliefs the party has like individual choice, freedom and small government, he said.
In 2018, Utahns voted to legalize medical marijuana in Proposition 2. According to the Salt Lake Tribune, state legislators replaced the voter-approved proposition with the Utah Medical Cannabis Act. Democrats argued the legislature should not override voters who endorsed the ballot initiative the month before.
More questions of overreach came up after former governor Gary Herbert enacted HB3005 back in May 2020. The law required the governor to notify certain legislative branch members before declaring a state of emergency. Rep. Merrill Nelson, R-Grantsville, was concerned the legislative branch was overstepping and said it seemed unnecessary and an overreach, The Daily Universe reported.
Beyond Utah, state governments have a pattern of getting involved in social issues on a local level. In North Carolina, McCrain said some cities were willing to have progressive policies regarding gender specific bathrooms, but the Republican state government disagreed.
North Carolina passed House Bill 2 in 2016, which required people in public buildings to use the bathroom that matches the sex on their birth certificate regardless of gender identity. This led to boycotts and cost the state millions in lost tourism revenue.
“This had massive economic backlash because a ton of industry left the state following that, which is of course something that can happen at any time,” McCrain said.
The Utah Legislature is 78% Republican as of 2022, but Salt Lake is more liberal. In 2020, 53.6% of Salt Lake County voted for President Joe Biden in the presidential election compared to 37.6% statewide.
McCrain said it’s important for Utah to control what’s going on in Salt Lake City because it’s the “economic powerhouse” of the state.
“We typically see this in settings where it’s a conservative state government and a city, which are generally very liberal,” he said.