GOP says some Democrats might favor curb of gubernatorial emergency powers

A bill introduced Wednesday aims to make gubernatorial emergency orders revocable by the Legislature after 60 days.

AB 108 by Assemblymen Jordan Cunningham, R-San Luis Obispo, and Vince Fong, R-Bakersfield, would amend the California Emergency Services Act. This is the 1970 law that has allowed Gov. Gavin Newsom to issue a series of orders throughout the pandemic shutting down businesses and churches and taking other steps he has said are designed to fight the COVID-19 pandemic.

The Legislature did not design the act with the current situation in mind, Cunningham said.

“Pretty clearly it was intended to help deal with your run-of-the-mill disasters like earthquakes and fires that beset California from time to time,” he said. “I don’t think it was really drafted to give unilateral power to an executive in a sort of endless pandemic. The pandemic will end, but the ESA in its current form allows the governor to declare the emergency, execute emergency powers, and also declare the end of the emergency. Theoretically, a governor could declare an emergency and never declare the end of it.”

The bill is part of a small but growing wave of legislation designed to rein in Newsom. So far, Republicans have introduced these bills, and it’s unclear if they could gain any traction in a Legislature dominated by Democrats.

“I have talked privately to quite a few of my colleagues on the other side of the aisle who have expressed concerns to me that this bill would address,” Cunningham said.

Assemblyman Kevin Kiley, R-Rocklin, introduced a similar bill on Dec. 7. AB 69 would also subject a governor’s emergency orders to legislative approval after 60 days. Kiley’s AB 76 would mandate schools reopen as soon as they are no longer barred from doing so by state or county orders. Cunningham said he is aware of Kiley’s AB 69, but added he welcomes there being multiple vehicles for the idea.

Gov. Ronald Reagan signed the Emergency Services Act. It established the Governor’s Office of Emergency Services and gave the executive sweeping powers over law enforcement and state agencies. It also allows a governor to suspend laws, spend money without legislative approval, and commandeer private property.

Reagan approved the law during a period of widespread student protests against the Vietnam War and other civil unrest. But it was relatively uncontroversial, and came as the state was working to update emergency medical services.

Since the current crisis began in March, many have focused on a perceived shortcoming of the act: the nebulous language about how long a governor can maintain a state of emergency. The law states the governor’s additional powers “shall terminate when the state of emergency has been terminated.”

However, COVID-19 infection and death rates are now at their highest peak in the state after nearly 10 months, the state government has said.

With the long timeframe and wide reach of the pandemic in mind, lawmakers gave California Chief Justice Tani Cantil-Sakauye broader powers by passing AB 3366 this year. The new law will let her and future chiefs issue orders affecting courts across the entire state.

On Tuesday, attorneys for plaintiffs challenging limits on protests on state property filed a motion to compel Newsom to sit for a deposition. The motion by attorneys D. Gill Sperlein and Harmeet K. Dhillon also seeks testimony from California Highway Patrol Commissioner Warren Stanley, former California Department of Public Health Director Sonia Angell, and Dr. James Watt, a doctor with the department.

Attorney General Xavier Becerra’s office has yet to file a response to the motion in Givens v. Newsom, 2:20-cv-00852-JAM-CKD (E.D. Cal., filed April 27, 2020).