California has been a one-party state for the last decade, with Democratic governors and supermajorities in both legislative houses doing pretty much as they pleased without paying any attention to the relative handful of Republican legislators.
However, one-party rule gave way to one-man rule eight months ago when Gov. Gavin Newsom declared an emergency due to the COVID-19 pandemic, thus empowering himself to govern by decree and suspend any laws that stood in his way.
Democratic legislators were fully complicit, even suspending their proceedings and abandoning Sacramento for months. Eventually, however, even they chafed a bit at Newsom’s seeming endless string of emergency orders.
In effect, some of those orders essentially made new law and while Democratic lawmakers stood by, two Republican legislators, Kevin Kiley and James Gallagher, filed suit, alleging that Newsom had gone too far.
Last week, Sutter County Superior Court Judge Sarah Heckman sided with the Republicans, declaring that Newsom’s order changing procedures for the November election, including a mandate that every voter be sent a mail ballot, crossed the line.
Although the Legislature later ratified the election changes, Heckman wrote that it was still important to place limits on a governor’s powers under the California Emergency Services Act. Heckman indicated that in her final ruling, she would permanently enjoin Newsom from issuing any order “which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.”
“The doctrine of the separation of powers prohibits any of the three branches of government exercising the complete power constitutionally vested in another or exercising power in a way which undermines the authority and independence of another,” Heckman, who was elected in 2012, wrote.
The law empowering a governor to declare an emergency and suspend laws that impeded a rapid response was clearly aimed at some immediate catastrophe such as a flood, an earthquake or a riot. It envisioned something like then-Gov. Pete Wilson’s suspension of contract bidding laws to quickly rebuild a major freeway after the 1994 Northridge Earthquake.
COVID-19 required a rapid response, but it’s also something that could last, in one form or another, for years. Conceivably, Newsom could continue governing under his emergency decree for the remainder of his first four-year term.
Even before pandemic struck, Newsom was prone to sidestepping laws that could impede whatever he might want to do. He boasts, for instance, of ignoring state law when, as mayor of San Francisco, he unilaterally authorized same-sex marriages. More recently, he declared that there would be no executions of murderers during his governorship even though California’s death penalty is still law — one that voters refused to repeal just four years ago.
Newsom claims moral imperative as justification for his acts, but if elected officials ignore laws they don’t happen to like or find inconvenient, they undermine the concept of governance under law and encourage disrespect for legal authority. Ironically, this is the same governor who demands that 40 million Californians obey his pandemic decrees, such as shutting down small businesses.
Judge Heckman’s order will certainly be appealed and the issue will probably wind up in the state Supreme Court. Newsom press secretary Jesse Melgar said Newsom and his advisers “strongly disagree” with “specific limitations” on the governor’s emergency authority.
Meanwhile, it’s time for the entire Legislature, not just Kiley and Gallagher, to reassert its co-equal authority rather than allowing Newsom to operate indefinitely as a one-man band.
The law that gives Newsom the authority to declare an emergency also allows the Legislature, on its own, to end such an order.