The Governor is Not a King

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

Governor Gavin Newsom has wielded unchecked power throughout the pandemic with the use of executive orders. Unchecked until now, that is. On Friday, Superior Court Judge Sarah H. Heckman issued a permanent injunction declaring that Governor Gavin Newsom’s use of executive orders when they amend or create law is unconstitutional. It seems a pattern of the governor to push the limits of his power in challenging both legislative statutes and laws created by voters.

The court action was sought by Assemblymembers James Gallagher (R-Yuba City) and Kevin Kiley (R-Rocklin) who challenged an executive order that had to do with elections at the time of the pandemic emergency.

But Judge Heckman saw the executive order issue in a much broader context, “whether  the Governor has the authority under the California Emergency Services Act (CESA) to exercise legislative powers by unilaterally amending, altering, or changing exiting statutory law.”

The governor’s lawyers argued that under the police powers vested in the governor during emergencies, he had the right and duty to make adjustments to laws to face the crisis.

The judge didn’t see it that way. She said CESA allows the governor to alter regulations to confront emergencies but does not permit the governor to amend or create laws even in an emergency. The judge pointed to the state Constitution that specifically confers lawmaking powers on the Senate and Assembly or through the people via the initiative and referendum processes.

The note on initiatives and referendums is particularly pertinent in the governor’s case. Gavin Newsom, in his executive roles, has chosen to ignore the laws on the books in pushing his judgment on policy. He did it as Mayor of San Francisco when he called for the licensing of same-sex marriages when the voters had opposed same-sex marriages with Proposition 22 in 2000. Voters supported the California death penalty with Proposition 66 in 2016 while also preventing an effort to repeal the death penalty, but that did not stop Governor Newsom who ordered a moratorium on death penalties while he is governor, and he had the death chamber at San Quentin disassembled.

Clearly, Newsom wants to pull the electorate along on a course he directs. His decree on same-sex marriage was followed by the court and voter acceptance of the same which served as an incentive to Newsom to continue the practice of pushing the envelope despite the law.

The overuse of executive orders is not an action exclusive to Governor Newsom. The past two presidents, Barack Obama and Donald Trump, used executive orders to questionable excess.

But in a nation of laws, the rules must be followed until changed by court mandates or through legislative or popular votes. Making law by executive order is a violation of the state Constitution and the Republican form of government.

Judge Heckman signed a permanent injunction enjoining the governor from exercising power under the California Emergency Services Act “which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.”

The ongoing argument between executive and legislative branches was critical for the courts to resolve, the judge wrote in her decision.

Which means we will see this battle move on to higher courts. Based on basic principles under which American and state government were conceived, the argument that the executive cannot make law should prevail.

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