Post by oldhippy on Jan 11, 2021 23:38:45 GMT
The Challenge to Newsom's One-man Rule
The limits of a governor’s powers during an emergency, if there are any limits, are the subject of a high-stakes legal battle now pending before the 3rd Circuit Court of Appeals in Sacramento.
Assembly members Kevin Kiley, R-Rocklin, and James Gallagher, R-Yuba City, filed suit against Gov. Gavin Newsom over executive orders that the lawmakers say are an infringement on the powers granted to the Legislature by the state Constitution. Sutter County Superior Court Judge Sarah Heckman agreed, ruling that the California Emergency Services Act grants the governor the power to suspend laws but not the power to create new ones. Heckman issued an injunction Nov. 13 against Newsom, prohibiting him from issuing executive orders that “amend” or “make new” statutory laws.
The governor appealed the ruling, and the briefs now have been filed with the court of appeals.
Newsom argues that the trial court should have declared the case moot because the specific executive order that was challenged, N-67-20, applied to the presidential election and the expanded distribution of mail-in ballots. In considering the authorization for executive orders more broadly, Newsom contends, the court erred and “threatens enormous practical harm” by limiting the governor’s authority.
Kiley and Gallagher argue that the case is not moot because the lawfulness of the governor’s orders under the California Emergency Services Act remains the broad question at issue. They further argue that Newsom’s petition to the appeals court “contains many false statements regarding the evidence and record in the lower court.”
Others have weighed in. An amicus, or friend of the court, brief was filed by Secretary of State Alex Padilla, who was just appointed to the U.S. Senate by Newsom. Unsurprisingly, Padilla argues that Newsom is right and the legislators are wrong. He says the changes Newsom made to the state’s election law were necessary because of the COVID-19 pandemic and in any case were written into law by the Legislature later.
Also filing briefs in support of the governor: the League of Cities and the California State Association of Counties, two UC Berkeley law professors and a number of state lawmakers.
Others filed briefs in support of Kiley and Gallagher. The Pacific Legal Foundation, representing three businesses shut down by the governor’s emergency orders, argued that more than nine months into the declared emergency, it is clear that Newsom “intends to continue to exercise ‘all police powers of the state’ to make law on an indefinite basis.” This cannot be the true intent of the California Emergency Services Act, the PLF contends, because it is “antithetical to the separation of powers enshrined in the California Constitution” and because the law lacks adequate guidance or safeguards for the exercise of such power.
A key precedent will be set by this case. The California Emergency Services Act has never before been invoked for an emergency of such long duration, but the health threat from the COVID-19 pandemic poses unique challenges.
However, Newsom has made statements that indicate his willingness to use the emergency to make permanent changes in California. He has suggested that COVID-19 is an “opportunity to reshape the way we do business and how we govern” and spoken of using it to bring in a “new progressive era.”
That suggests that the concentration of unlimited power in the hands of one individual is an emergency in itself.