Muted by the election this week was the news that a state Superior Court ruled against Governor Gavin Newsom (D) in a lawsuit that challenged his executive orders as unconstitutional. The abuse of power lawsuit was brought by Republican California Assembly members Kevin Riley (R-Rocklin) and James Gallagher (R-Yuba City), with whom the presiding judge sided in ruling that Newsom had acted unconstitutionally in issuing an election order that overstepped his powers as Governor.
Newsom has used the emergency powers granted him during the pandemic to issue over 50 increasingly draconian executive orders that effectively constitute rule by fiat. But the order that initiated the lawsuit was Executive Order N-67-20, which Newsom signed in June, and required that counties mail all eligible voters vote-by-mail ballots before election day and further regulated the number of polling stations.
Judge Restrains Abuse of Power
The plaintiffs alleged that the Governor’s implementation of the California Emergency Services Act (CESA) in March prevented him from issuing further executive orders or passing new laws. Judge Sarah Heckman agreed with the two Republicans. She sought to prevent further abuse of power by issuing a permanent injunction against the Governor regarding any attempts further to issue unconstitutional orders.
Kiley and Gallagher lauded the decision and issued a joint statement:
“The Judge has ruled in our case against Gavin Newsom. We won. The Judge found good cause to issue a permanent injunction restraining the Governor from issuing further unconstitutional orders. We’ve been arguing that the California Emergency Services Act does not provide for one-man rule. Today, the court agreed with us. This is a victory for separation of powers. The Governor has continued to create and change state law without public input and without the deliberate process provided by the legislature. Today, the judicial branch again gave him the check that was needed, and the Constitution requires.”
The plaintiffs further argued that the decision was more broadly about the separation of powers – something the Governor has appeared to lowercase profoundly during the pandemic and to which this decision spoke. Judge Heckman barred Newsom “from exercising any power under the California Emergency Services Act which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.” This ruling directly confronts what has become a revealing and increasingly authoritarian bent in the Governor.
The 9-page ruling implicitly rebuked Newsom for attempting to act as the legislative branch of state government, in trying to enact laws via executive order. It made clear that the limits of Newsom’s powers allow him to “make, amend, and rescind orders and regulations” and to “suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules or regulations of any state agency.”
Newsom overstepped these limits set out in the CESA, according to the ruling, which makes explicit that “the governor does not have the power or authority to assume the legislature’s role of creating legislative policy and enactments.” That Newsom acted with what looked like impunity as he purloined the powers of the legislative branch to his own ends demonstrates his burgeoning power lust.
Newsom was prevented from effectively bundling the separate powers of the three branches of state government together to wield unprecedented power. In similar manner, Governor Gretchen Whitmer (D) suffered a significant setback to her designs of total control in Michigan back in October when her COVID power-grab efforts were also ruled unconstitutional.
The ruling that checked Newsom’s metastasizing efforts to control California like an emperor or authoritarian is tentative. There was no word from the Governor’s office as to whether the decision would be appealed.
Read more from Pennel Bird.