On Sept. 14, California voters head to the polls to decide Gov. Gavin NewsomGavin NewsomHalf of unvaccinated California state workers not being tested: report It's time for Fauci to go — but don't expect it to happen California faces flash flood watches amid 'Bomb Cyclone' and 'Atmospheric River' MORE’s fate in a historic recall election. Perhaps the biggest motivating factor behind the recall effort is Newsom’s aggressive COVID-19 pandemic response, in which he unilaterally issued orders for school, business and church closures; mask mandates; and other demands he judged essential to fight the virus.
In doing so, Newsom paid little attention to the role of the executive under a government of separated powers. Newsom seems to have decided that the unprecedented public health emergency gave him carte blanche to wield power without consulting other branches of government or the taxpayers affected by his decision-making.
Governors, of course, do have an important role in coordinating and implementing public health policies. And in the pandemic’s early days, it made some sense to defer to the executive branch on policy decisions, given the perceived need for swift action in a high-risk and uncertain environment.
But those “early days” ended about 18 months ago. Once the initial uncertainty passed, normal government should have resumed. Under our states’ constitutions, power is divided among three branches, and it is the duty of the legislatures — not governors — to establish policy, including public-health policy, and pass laws that bind the people. Legislatures may not pass the buck and delegate broad and unreviewable policy-making powers to the executive branch, which after all is charged not with making policy but with executing it.
Pacific Legal Foundation filed a lawsuit on behalf of two small businesses whose very survival was threatened by Newsom’s unilateral and arbitrary orders. Ghost Golf, a family entertainment center, and Sol Y Luna Mexican Cuisine challenged Gov. Newsom’s COVID-related rules, including his “Blueprint for a Safer Economy.” These orders imposed complex restrictions, declared some businesses to be “essential,” and changed often. Businesses such as Ghost Golf and Sol Y Luna faced not only a pandemic, but also high-handed and arbitrary restrictions.
In contrast to California, many state legislatures have wisely amended their states’ public-emergency laws to limit — and thereby prevented future abuse of — governors’ emergency powers. These reforms authorize governors to take certain actions for a limited time, and in ways that protect constitutional rights. These new laws represent a sensible reassertion of the separation of powers, in which policy-making powers are reserved to the people’s branches, where the people’s elected representatives act on their behalf.
California’s Emergency Services Act remains unchanged. It allows the governor to “make, amend, and rescind orders and regulations necessary to carry out the provisions” of the act. Newsom has, perhaps understandably, read this statute as giving him sweeping policy-making (that is, legislative) powers to establish and modify the state’s public-health policy for as long as he determines an emergency exists.
Members of California’s legislature may be happy to put all of the onus on the governor, but in doing so they abdicate their constitutional obligations to set policy — and that level of delegation can be dangerous, because it short-circuits the natural feedback system of democratic accountability to the people.
As the Delta variant spreads, it’s clear the pandemic remains a serious challenge. But crises do not justify scrapping constitutional norms. The executive and legislative branches should, and are required to, act together to craft and execute policy, even during emergencies. Let’s hope that whatever decision California voters make in the upcoming election, the state’s legislators do the hard work of establishing policies, rather than passing the buck to the governor.
Oliver Dunford is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. PLF has litigated and advanced model legislation to limit executive emergency powers.