Patterico's Pontifications

5/6/2021

Win Some, Lose Some

Filed under: General — JVW @ 2:59 pm



[guest post by JVW]

Just as we were celebrating our judicial system trying to pare back the unusual amount of power that executives and the executive bureaucracy have amassed during the COVID pandemic, a group of California appellate judges overturned earlier rulings that Governor Gavin Newsom had exceeded his authority by engaging in what amounted to unilateral rule for several months last spring and summer, aspects of which continue to this very day:

California Gov. Gavin Newsom’s use of emergency powers to make far-reaching policies during the pandemic was upheld Wednesday by state appellate judges who rejected a lower court finding that the Democrat had done too much unilaterally.

Three judges from the 3rd District Court of Appeal in Sacramento ruled unanimously that the prior judge “erred in interpreting the Emergency Services Act to prohibit the Governor from issuing quasi-legislative orders in an emergency.

“We conclude the issuance of such orders did not constitute an unconstitutional delegation of legislative power,” they said in ruling on a lawsuit brought by Republican state legislators.

We discussed this matter eleven months ago in the aftermath of the original ruling by Judge Perry Parker that Newsom had exceeded his emergency powers mandate. As I had predicted then, the governor and his Democrat allies had Judge Perry’s injunction — as well as a similar one by Judge Sarah Heckman of Sutter County which came in November — put on hold by the appellate court, and thus the governor has largely continued his one-man rule with his “emergency” powers remaining in place fourteen months into the pandemic.

Judge Perry’s ruling was centered around the issue of Governor Newsom unilaterally changing election rules. This gave the opportunity for the governor to have his changes rubber-stamped by the legislature to make everything hunky-dory:

The lawsuit itself centered on just one executive order requiring election officials to open hundreds of locations statewide where voters could cast ballots, despite the potential health risk.

The Legislature subsequently approved the same requirement, which Newsom said showed he was working with lawmakers. The [GOP] assemblymen said it showed the governor could often have used the usual legislative process.

The appeals court said that portion of the claim was moot because the governor’s order was superseded by the legislation which was directed at an election that has already occurred.

Which provides a fine lesson to future executives: seize power, rule as you wish, then wait for our sclerotic legal system to rule the objections moot some number of months later. The true villains here are California Assembly and California Senate who have cynically and lazily delegated authority to an ideological fellow-traveller and passed up numerous opportunities to take it back in a way that they surely wouldn’t with a governor from the other party. The perils of living in a political monoculture.

– JVW

36 Responses to “Win Some, Lose Some”

  1. Does this ruling help or hurt Newsom where the recall effort is concerned? Will the legislature take back the governor’s emergency powers before the recall vote takes place, or will the governor made a big to-do about voluntarily relinquishing them, declaring that his stately and shrewd statesmanship had steered us through the crisis?

    JVW (ee64e4)

  2. Here in the Bluegrass State, Reichsstatthalter Andy Beshear (NSDAP-KY) has gotten away with the same bovine feces.

    After issuing a bunch of Führerbefehle, the Reich Governor was sued in various state courts, and, in most cases, the plaintiffs won. He appealed to the state Court of Appeals, which upheld the plaintiffs. Then, the state Supreme Court stepped in, consolidated the cases, and on July 17, 2020 put a stay on all state court action against the Reich Governor’s executive orders, until they could decide.

    Three weeks after that, the Court announced that oral arguments would be heard on September 17, 2020, two months after the Court stayed all other action. Then, the Court, which is nominally non-partisan but in effect controlled by the Democrats, decided, on November 12, 2020, that the Reich Governor’s executive orders were constitutional.

    Of course, Republican candidates ran against the Reichsstatthalter’s authoritarian dictates, and the voters rewarded them with 14 additional seats in the state House of Representatives, for a 75-25 majority, and two additional seats, out of 17 up for election, giving the GOP a 30-8 majority in the state Senate.

    Once the legislature opened its session, on January 5, 2021, they began working on bills to limit the dictator’s emergency authority, and passed several such bills. The most important was Senate Bill 1, which limited all such orders to 30 days, unless the state legislature approved extensions. Herr Beshear vetoed all of those bills, but the General Assembly easily overrode him.

    Naturally, Herr Beshear went to court, and Franklin Circuit Judge Phillip Shepherd, a Democrat who had always tried to stymie former Governor Matt Bevin (R-KY) issued an injunction preventing the newly passed laws from taking effect.

    As you might guess, the past was repeated: the state Supreme Court consolidated a couple of cases, in the early part of April, and then set oral arguments for June 10th. Thus, regardless of the outcome, the Supremes have said that the Reich Governor’s Führerbefehle would remain in force until they decide. Assuming that the Court takes the same eight weeks to reach a decision, tyranny remains in force until the first part of August!

    In a bit of irony, the General Assembly passed legislation authorizing an extension of several, but not all, of the Führerbefehle, and Judge Shepherd issued an injunction against those extensions, I suppose so that the issuance of the extensions wouldn’t impact his previous decisions.

    Now, the Reichstatthalter has relaxed some of his decrees, one of which makes one of the lawsuits which went against him moot. He has said that he will remove the rest of them, with the exception of the hated and worthless mask mandate, once 2,500,000 adult Kentuckians are vaccinated, in his attempt to force people to take the vaccine.

    The Dana in Kentucky (e9cac9)

  3. I assume it will be appealed to a higher court ;but courts give government more authority during emergency ask wendy yoshimira about that. She was born in manzanaar concentration camp california. By the way the highest court in the land is not the supreme court ;but the street where the dread scott decision, rodney king verdict and many others were decided. Gavin newsome is up for recall and unlike most recall states if he doesn’t get 50% he is out as grey davis found out the hard way.

    asset (c09b25)

  4. Governor Tom Wolf (D-PA) has rescinded most of the Keystone State’s restrictions, effective on Memorial Day, which is May 31, but he’s leaving the mask mandate in place. Now why wait until Memorial day, the third day of the three-day holiday weekend? If there’s reason not to end the restrictions now, how can he know that those reasons won’t still be in place on Saturday, May 29th, but be gone on Monday the 31st?

    The city of Philadelphia will continue with its restrictions.

    Governor Greg Abbott (R-TX) lifted the mask mandate in the Lone Star State on March 10th, and the pearl clutchers were aghast, telling us that everyone would die, die, die! What has actually happened is that Texas is seeing its seven-day moving average of new COVOD cases at the lowest point since June 18, 2020. Regardless of what the experts have said, the empirical evidence is that the mask mandates don’t do anything. Texas is seeing slightly fewer new cases per day than Pennsylvania, despite having more than twice the Keystone State’s population.

    But those Democratic governors, they love the mask mandates, because they are the visible indicator of the people knuckling under to their draconian decrees.

    The Dana in Kentucky (e9cac9)

  5. I guess that federal courts will be dealing with this for some time, in a mass effort at barn-door locking.

    Kevin M (ab1c11)

  6. Irony alert:

    A California faculty union has accused Cypress College of “failure to be anti-racist” and creating a “chilling effect” on workplace safety after it fired an anti-police communications professor who talked down to a student over his presentation condemning cancel culture.

    She made the claim, before a virtual class of sophomore students, that calling 911 during an armed home invasion would actually further put her life in danger.

    “United Faculty stands in solidarity with all our faculty in protecting their academic freedom and the right to a safe work environment, free of hostility and threats to their physical safety and emotional well-being,” the United Faculty union’s president, Christie Diep, and lead negotiator, Mohammad Abdel Haq, said in a statement Monday.

    https://www.foxnews.com/us/california-cypress-college-union-firing-anti-cop-professor-workplace-safety

    So, a student opposes cancel culture. His professor slams him mercilessly for for his stand. Professor is then canceled. Her union, which apparently agrees with her that opposing cancel culture is racist, opposes the cancellation.

    Kevin M (ab1c11)

  7. will the governor made a big to-do about voluntarily relinquishing them

    For now.

    Kevin M (ab1c11)

  8. The perils of living in a political monoculture.

    This just begs a question.

    norcal (01e272)

  9. What has actually happened is that Texas is seeing its seven-day moving average of new COVOD cases at the lowest point since June 18, 2020.

    If that is true, it is even more remarkable given the aggravated vector of the border migrant/UAC surge.

    urbanleftbehind (a0d26d)

  10. If that is true, it is even more remarkable given the aggravated vector of the border migrant/UAC surge.

    urbanleftbehind (a0d26d) — 5/6/2021 @ 4:24 pm

    I love it that we have 50 laboratories of democracy, and that states like Texas can show the more timid states how to do it.

    There are so many pansies out there who are afraid of their own shadows. Just yesterday I saw somebody driving, alone in a vehicle, with a mask on. For the love of mike!

    I’ve said since last year that I’m on board with masks until every adult who wants a vaccine can get a vaccine. That time is soon approaching, if it hasn’t already happened. Will there still be some risk after that? Probably, but guess what? Life is full of risks! If somebody is that worried about being safe, they should never get in a car. Besides, the flu kills tens of thousands of Americans each year. We don’t wear masks to prevent those deaths.

    It was moving to see the Kentucky Derby last Saturday. 50,000 people were in attendance, and the vast majority were not wearing masks.

    norcal (01e272)

  11. , a group of California appellate judges

    I had to catch myself on this one. The first time I read past that and picked up judges. Then I noticed it was California judges and everything made more sense.

    frosty (f27e97)

  12. Kevin M (ab1c11) — 5/6/2021 @ 4:13 pm

    their academic freedom and the right to a safe work environment, free of hostility and threats to their physical safety and emotional well-being

    Seems like being fired is both hostile and a threat to someone’s emotional well-being. You’ve got to love these neat little logic puzzles. I have to wonder whether this is one of those free speech isn’t free of consequences people.

    frosty (f27e97)

  13. Yeah, yeah, it’s all fun and games until someone loses a governorship.

    nk (1d9030)

  14. 1.Does this ruling help or hurt Newsom where the recall effort is concerned?

    He’s likely going to face the exit ramp with average voters over something that hits home: food and gas.

    Eating at the pricy restaurant French Laundry north of San Francisco was just ‘Covid stupid’ and the after taste w/voters remains bitter. And with highly taxed petrol now over $5/gallon in a lot of CA locales and headed north, his chances of surviving are pointed due south. Jenner knows how to run and win a race… don’t count him out; he might just win this one, too.

    DCSCA (f4c5e5)

  15. When the courts, which are supposed to be the place of last resort to resist state tyranny are just as corrupt as the rest of government, where do you turn?

    NJRob (b8d54d)

  16. Can I recommend not buying gas at “Round up to the next 5er” gas station? $5 is most definitely not what I am paying or what I have seen and since I drove on most of I80 between the east bay and the foothills this week (goodish family stuff :P), I’ve covered a fair amount of territory.

    Nic (896fdf)

  17. Newsom is holding the Democrat Party hostage and it may backfire. There may be Democrats who do not appreciate his “Me or some Republican” attitude. Assuming that Demcorats do vote in the replacement election, I cannot see one of the crazy whackjob anti-Hispanic Trumpies getting many votes. Considering that California is probably majority Hispanic by now.

    Newsom and his running dog media are playing all the “cards” now, Trump, abortion, race, etc. I expect to hear things like “wiping out renter’s Covid debts” (to prevent homelessness) using his regained emergency powers, followed by an upsurge in car sales.

    Kevin M (ab1c11)

  18. Gas in CA is $3.17 at its lowest (Bakersfield) and can be had nearly anywhere for under $4, although some places are higher, like West LA where $4.50 is common.

    Kevin M (ab1c11)

  19. Where I am you can get gas for $2.80 pretty much anywhere. More if you want a national brand.

    Kevin M (ab1c11)

  20. 3.09 by me and probably closer to 4.00 in nk’s Chicago proper, and that’s with the infamous EPA mandated Spring blends for NE Illinois.

    Maybe DC is honking for the attendant to fill er up? That usually added a dollar per gallon, but I haven’t seen that anywhere but Joisey or Antifa-gon for the last 20 years.

    urbanleftbehind (2d50c6)

  21. Meanwhile in other political monocultures they are taking steps to ensure it stays that way by making it more difficult to vote them out (unlike California which made voting more accessible):

    Like the bills just signed into law in Georgia and Florida, Ohio’s HB 294 makes its main target absentee voting and ballot drop boxes after those methods were widely used for the first time in Ohio for the November presidential election and helped increase nationwide voter turnout to record levels.

    The Ohio House bill would limit the number of drop boxes to just one location per county, and that location can have up to three drop boxes. It would also allow drop boxes to be used only in the 10 days leading up to Election Day, a huge decrease from last year when Ohio voters had 30 days to return their ballot via drop box.

    Those boxes would also only be allowed outside of the county Board of Elections offices, hindering voters who don’t live near the offices and don’t have easy access to transportation. Such voters would have to find other ways to return their ballots.

    In addition to the drop box changes, the bill would impose new restrictions on voter registrations and absentee voting, including limiting what kind of mail-in ballots can be “cured” ― the process of fixing small mistakes made by voters on their ballots so that the votes can count. HB 294 would also move the absentee ballot request deadline up seven days and eliminate in-person absentee voting on the Monday before Election Day.

    Additionally, the bill would cut early voting hours, require two forms of voter ID and limit the existing ability of the Ohio secretary of state to prepay postage on election mail. Like similar bills across the country, HB 294 would disproportionately affect Black and brown voters, students, low-income residents, disabled people, active-duty military and seniors.

    https://www.huffpost.com/entry/ohio-latest-state-introduce-major-voter-suppression-bill_n_609493efe4b05fb33f4a8a00

    Victor (4959fb)

  22. Victor (4959fb) — 5/6/2021 @ 11:17 pm

    Just following orders:

    “We want to get rid of the ballots, and we’ll have a very peaceful — there won’t be a transfer, frankly. There’ll be a continuation.” – Donald Trump, September 2020

    Dave (1bb933)

  23. infamous EPA mandated Spring blends for NE Illinois.

    California doesn’t use the wimpy EPA compromise fuel. It has it’s own formula produced and sold nowhere else. Which means it’s a captive market with perpetually high fuel prices, pleasing the refiners and the Greens immensely.

    I expect high gas price to roll out nationally. Perhaps a $2/gallon federal gas tax.

    Kevin M (ab1c11)

  24. “We want to get rid of the ballots, and we’ll have a very peaceful — there won’t be a transfer, frankly. There’ll be a continuation.” – Donald Trump, September 2020

    Question, Dave, do you think more people are convinced to oppose Trump by saying this, or just pissing people off so much they vote for him to annoy you?

    Kevin M (ab1c11)

  25. I would be truly shocked if anyone cast their presidential ballot based on how it would perturb my emotional state, Kevin.

    Dave (1bb933)

  26. It’s pretty clear from the GOP lead state legislatures are doing that making it harder to vote is part of the goal.

    Time123 (80b471)

  27. the problem with how we’ve voted for several decades up until covid was what exactly?

    making it harder when you literally don’t have to get out of bed to vote is a laughable first world problem

    JF (e1156d)

  28. Voting suppression or voting integrity? It’s a Rorschach test.

    norcal (01e272)

  29. Mr behind wrote:

    What has actually happened is that Texas is seeing its seven-day moving average of new COVOD cases at the lowest point since June 18, 2020.

    If that is true, it is even more remarkable given the aggravated vector of the border migrant/UAC surge.

    Here is the source, from The New York Times, not exactly an evil reich wing site.

    And the numbers have dropped since yesterday, with the moving seven-day average now 2,651, the lowest point since June 17, 2020.

    The Dana in Kentucky (e9cac9)

  30. It’s the liberal ratchet, JF. You know how the ratchet wrench works, right? Well, the liberal one only has a lefty-loosey setting. No lever to switch it back to righty-tighty.

    nk (1d9030)

  31. 23. Kevin M (ab1c11) — 5/7/2021 @ 1:23 am

    I expect high gas price to roll out nationally. Perhaps a $2/gallon federal gas tax.

    I don’t see Biden or the Democrats (could they get a majority in Congress to vote for that?) doing that, at least not until electric cars are well over 50% of all vehicles on the road, and there are numerous charging stations along every Interstate highway – which means at least 10 or 15 years into the future – they might pass a bill where that would gradually be phased in starting several years in the future from then.

    And even then, they’d prefer a mileage tax. Maybe a mileage tax with the idea that way they would cover all electric vehicles.

    Sammy Finkelman (51cd0c)

  32. 9. urbanleftbehind (a0d26d) — 5/6/2021 @ 4:24 pm

    If that is true, it is even more remarkable given the aggravated vector of the border migrant/UAC surge.

    It’s an insignificant factor, even given the high rate of Covid in Mexico. And after all they are not the only people crossing the Mexican-U.S. border. nd they di get tested sooner or later.

    New York City is considering proposing to make available vaccines to all tourists. Of course vaccines on;y affect what’s going to happen 10 to 50+ days in the future.

    Sammy Finkelman (51cd0c)

  33. Voting suppression or voting integrity? It’s a Rorschach test.

    But the world’s greatest and most reliable authority assured us that in the states he won, everything was perfect and there was no fraud whatsoever.

    So the motivation for the Florida, Ohio and Texas laws simply can’t be “voting integrity”.

    Which leaves “voting suppression”…

    Dave (1bb933)

  34. The distinguished Mr Finkelman wrote:

    New York City is considering proposing to make available vaccines to all tourists. Of course vaccines on;y affect what’s going to happen 10 to 50+ days in the future.

    Do you remember when the Honorable Bill de Blasio threatened to send the gendarerie to the hotel rooms and homes of every traveler entering New York City from the United Kingdom?

    The Dana in Kentucky (e9cac9)

  35. the problem with how we’ve voted for several decades up until covid was what exact

    ly?

    large discrepancies in voting access that break down along racial line.

    Time123 (89dfb2)

  36. I look forward to how the Republican candidates propose to eliminate homelessness and reduce the high cost of housing and gas, while at the same time working with a heavily Democratic legislature.

    Rip Murdock (41bc87)


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