State high court should decide whether governor can legislate

In a first, a California Court of Appeal has issued an opinion that holds that the governor has the power to unilaterally legislate during a declared state of emergency, which legislation expires upon the emergency's termination. Unless the California Supreme Court grants review to clarify the scope of any such power or depublishes this opinion, it will allow future governors to legislate during emergencies for years to come. After all, most emergencies do not last long enough for future legal challenges to reach the appellate stage; thus, this opinion will govern all superior court proceedings.

Under the Emergency Services Act, the governor has formidable powers during a declared state of emergency. The governor "may make, amend, and rescind orders and regulations" (Gov. Code Section 8567), "may suspend any regulatory statute, or statute prescribing the procedure for the conduct of state business" (Gov. Code Section 8571) and has "the right to exercise ... all police power vested in the state by the Constitution and laws of the State of California" (Gov. Code Section 8627).

The governor's right to make or rescind orders and regulations is well within the executive branch's prerogative since such orders and regulations are ordinarily issued by agencies under the governor's jurisdiction. Likewise, the authorization to suspend regulatory statutes falls within the executive branch's authority to enforce the laws. Although the California Constitution provides that "[t]he Governor shall see that the law is faithfully executed" (Cal. Const. art. V, Section 1), when the Legislature grants the governor the power to suspend statutes, as here, he is well within his authority to decline to enforce them.

But the California Constitution would appear to prohibit the governor from exercising the state's police power in order to legislate. Unlike the U.S. Constitution, whose structure is based on the separation of powers, California's Constitution expressly adopts the Madisonian principle of separation of powers. Article III, Section 3 of our state Constitution provides, "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

In Newsom v. Superior Court, 2021 DJDAR 4417 (May 5, 2021), two members of the California Assembly, Kevin Kiley and James Gallagher, challenged Gov. Newsom's executive order, issued during the current state of emergency, requiring that all eligible voters be provided vote-by-mail ballots for the November 2020 general election. That executive order was followed by a further executive order affirming the first one and altering arrangements for the number, location, and duration of polling places and voting centers. Although the executive order was subsequently superseded by legislation and the 2020 election had passed, this act of executive legislation caused a superior court to issue declaratory and injunctive relief, prohibiting the governor from issuing any executive orders under the Emergency Services Act that changed or made statutory law.

In a writ proceeding brought by the governor, the 3rd District Court of Appeal issued an opinion that concluded that the Emergency Services Act granted the governor the right to legislate during a state of emergency (which the court characterized as a "quasi-legislative power") because Government Code Section 8627 grants the governor "the right to exercise ... all police power vested in the state ... in order to effectuate the purposes of this chapter." This was not an unreasonable statutory interpretation, since "police power," as the Court of Appeal recognized, is the authority to "'enact laws'" to promote the public health, safety, and welfare.

However, the Court of Appeal proceeded to rule that granting the governor the power to legislate under the Emergency Services Act did not violate the Constitution's separation of powers clause. The court reasoned that "the Legislature does not unconstitutionally delegate legislative power when the statute provides standards to direct implementation of legislative policy," and while "section 8627 does not set forth express standards," they can be implied by the Emergency Services Act's statutory purpose, which is to "provide a coordinated response to the emergency." It further concluded that "of greater significance than 'standards'" were the "safeguards" provided by the Emergency Services Act "against the arbitrary exercise of quasi-legislative authority." The court identified two such safeguards here: The governor's obligation under the act to "'proclaim the termination of a state of emergency at the earliest possible date that conditions warrant,'" and the Legislature's authority to terminate the emergency at any time.

But these are hardly safeguards against the arbitrary exercise of power. The safeguard that a governor who abuses his or her power can terminate the abuse by terminating the emergency is no safeguard at all. The whole purpose of the separation of powers is to avoid the concentration of power in a single person or department, as Federalist No. 51 explained. Instead, the separation of powers was designed, as Madison put it, for "[a]mbition ... to counteract ambition," likely borrowing from Montesquieu, who wrote that "every man invested with power is apt to abuse it" and "[t]o prevent his abuse, it is necessary ... power should be a check to power."

Nor is the Legislature's right to terminate the state of emergency an effective safeguard because the termination of the emergency terminates all orders issued during the emergency. If the emergency continues, this safeguard requires a sledge hammer to kill a gnat.

Of course, "the Legislature 'properly may delegate some quasi-legislative or rulemaking authority,'" but this requires "'suitable safeguards ... [both] to guide the power's use and to protect against misuse,'" as Justice Liu wrote for an unanimous California Supreme Court in Gerawan Farming, Inc. v. Agricultural Labor Relations Board, 3 Cal. 5th 1118, 1146 (2017). And safeguards to guide the exercise of legislative power is critical because "the purpose of the doctrine that legislative power cannot be delegated is to assure that 'truly fundamental issues [will] be resolved by the Legislature.'" Kugler v. Yocum, 69 Cal.2d 371, 376 (1968).

In this case, the governor legislated over a fundamental policy issue: the procedures for fair and secure elections. Rather than direct counties to mail applications for absentee ballots under existing law, the governor chose to write a new law requiring that ballots be mailed to all eligible voters, whether they would use them or not. With California increasingly subject to emergencies -- pandemics, wildfires, and drought -- unless the California Constitution's express separation of powers is enforced, the power to enact fundamental policy will be increasingly placed in the hands of a single person without the prior debate, public participation, and transparency that the legislative process entails.

And it was one-person rule, robed in republican principles, that ultimately ended the Roman Republic. Drawing from history, Madison noted in Federalist No. 51, "If men were angels, no government would be necessary. ... In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." If the Emergency Services Act authorizes a single person to make, suspend and enforce the laws, any governor can circumvent our constitutional constraints during the duration of the very emergency that he or she declares. 