Governors can’t single-handedly govern during COVID-19

Ever since the COVID-19 outbreak began, individuals and businesses have taken extraordinary measures to slow its spread. But in many states, instead of working with legislatures to enact reasonable and constitutional COVID-19 protocols, governors have used executive orders and emergency powers to govern single-handedly, without any of the proper checks and balances.

For example, small businesses across the state of California continue to be devastated by Governor Gavin Newsom’s executive orders shutting them down or strangling their ability to operate profitably. According to Yelp, at least 19,000 businesses had permanently closed throughout the state of California through the month of September, and those numbers continue to rise. For nearly eight months, these businesses have been arbitrarily shut down or allowed to open solely at the discretion of the governor.

Governor Newsom has claimed nearly unlimited authority during an emergency, even though an emergency declaration could last indefinitely. But the California Emergency Services Act (ESA)—the law Newsom has used to justify his executive action—does not give him such unchecked power. The governor may coordinate and enforce existing powers granted to the executive branch, but the ESA does not give him the power to create new rules out of whole cloth. Indeed, the ESA cannot do so, because giving such unchecked and standardless power to the governor would be an unconstitutional delegation of authority.

Last month, Pacific Legal Foundation filed a lawsuit on behalf of two California small businesses and their owners. Ghost Golf is a haunted house-themed indoor miniature golf course in Fresno that has been shut down almost continuously since March. Sol y Luna is a Mexican restaurant in Bakersfield that was long forced to operate only outdoors and even now can operate only at a diminished and unsustainable capacity.

Last week, PLF filed a preliminary injunction motion urging the Fresno Superior Court to declare that Governor Newsom’s shutdown of these businesses is unlawful. We have a hearing set for December 15, 2020, in order to get relief for our clients and for other small businesses in California.

Fortunately, it appears that the tide is turning against Governor Newsom and his claim of unchecked power. On November 2, a Superior Court judge ruled against Governor Newsom in a case brought by California Assemblymen Kevin Kiley and James Gallagher. The judge ruled that one of the governor’s executive orders that concerned the election was unlawful, and that Governor Newsom lacked the authority to issue any further unconstitutional orders. Although this ruling will almost certainly be appealed, it is a promising sign that judges in California are waking up to the fact that the separation of powers cannot be ignored, even during a pandemic.

The outcome in the Kiley/Gallagher lawsuit is a big win for liberty. But it does not by itself secure the right of businesses to operate. And so we will continue to fight on behalf of those businesses that have been the victims of Governor Newsom’s unlawful orders.