The limits of a governor’s emergency powers

July 14, 2020 | By LUKE WAKE
Gavin Newsom

Even in a public health emergency, the constitution still matters.

That’s one lesson we can take from the restraining order issued by a California judge on June 12 halting one of Governor Gavin Newsom’s emergency orders. The ruling argued that Newsom’s order overstepped his office’s authority, infringing upon the legislature’s lawmaking powers.

The offending order, seeking to change a variety of state election laws, is one of many constitutionally suspect emergency orders the governor has issued in recent months in response to the COVID-19 pandemic. For example, Newsom also issued emergency orders to change workers compensation standards and impose supplemental paid sick leave obligations on certain employers.

Newsom’s aggressive use of emergency powers is alarming, because it increasingly looks like the governor is using the cover of the public health crisis to enact his preferred policies (many with little to nothing to do with public health) without having to go through the deliberative legislative process. In so doing, Newsom is undermining the separation of powers established in the state constitution.

In most states, emergency powers are conferred on the governor by statute. In some cases, the legislature constrains the governor by imposing clear time limits on emergency powers. Other states authorize the governor only to take certain enumerated actions. Thus, if the governor seeks to go beyond what has been expressly authorized, then there is a grave constitutional problem—a violation of the separation of powers. And we’re fighting to prove that point in our lawsuit challenging improper emergency orders in Ramirez v. Lamont.

As the U.S. Supreme Court recognized in Jacobson v. Massachusetts, states may enact statutes to prevent the spread of a contagious disease. So if a legislative body were issuing these regulatory restrictions, there would be little constitutional ground for objection, and unless the legislature has acted arbitrarily, its judgment as to how to address a serious public health threat will generally withstand judicial scrutiny. However, we are not dealing with draconian legislative impositions, but instead with increasingly controversial rules dictated unilaterally by the governor.

More generally, there is a constitutional problem whenever a governor asserts sweeping autocratic authority to make rules, as Newsom appears to be doing. Even if the governor believes he is acting in the public interest, it is still the legislature’s job to make law. “What the governor thinks is best” is not a reliable principle for accountability in governance.

And the longer Newsom and other governors continue to issue orders regulating our private affairs, the more it looks like autocratic rule. The whole point of conferring emergency powers is that we sometimes need swift executive action to respond to a time-sensitive emergency. But that justification diminishes as time passes, because there is greater time for the lawmaking branch of government to deliberate.

In any event, a governor can’t use a declaration of emergency to upend constitutional doctrine. Exploiting emergency powers to micro-manage the economy and our private lives is deeply troubling, because it amounts to an assertion of unchecked authority—i.e., a power to act outside the constraints of law. Even in the midst of a pandemic emergency, Newsom and other governors should respect the constitutional limits on their powers, and work with legislators to craft and enact laws that serve the people.


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