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The appeals court said that portion of the claim was moot because the governor’s order was superseded by the legislation which was directed at an election that has already occurred.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