A California appellate court this week went out of its way to uphold Gov. Gavin Newsom’s unconstitutional response to the COVID-19 crisis in a unanimous opinion that disregards some of the most important principles of American constitutional law.
In Ghost Golf v. Newsom, the owner of a Fresno-area small business challenged the constitutionality of Gov. Newsom’s so-called Blueprint for “reopening” businesses after the statewide shutdowns imposed during the pandemic. The challenge was filed on the grounds that the Blueprint is essentially lawmaking—and governors aren’t supposed to make laws; that’s the legislature’s job. Represented by our friends at the Pacific Legal Foundation, the plaintiffs pointed out that the Blueprint sets detailed rules for how businesses can operate in exchange for permission to reopen their doors. But making rules for the operation of businesses is a quintessentially legislative function—not the job of the executive branch, over which Gov. Newsom presides. That’s particularly true in California, where the state Constitution entrusts the governor with relatively few governmental powers. Indeed, the California Constitution includes a “separation of powers” clause that declares “the powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
But there’s an additional wrinkle to the Ghost Golf lawsuit: it’s moot. That’s a term lawyers use when circumstances have changed during the lawsuit in a way that makes the dispute effectively meaningless. If, for example, the government repeals a law that the plaintiff is saying is unconstitutional, then the law no longer exists, and the case is moot. In this case, the unconstitutional Blueprint has been rescinded—that is, repealed. And when that happens, judges normally dismiss the case.
Here, however, the California Court of Appeal refused to dismiss the case. Although the justices agreed that it was moot, they nevertheless decided to issue an opinion anyway, because the question of the Blueprint’s constitutionality was one of “broad public interest.”
The decision the justices issued upholds the Blueprint on the grounds that California law “delegates quasi-legislative power to the Governor in an emergency”—that is, it permits the executive branch to write law. It’s important, they said, to ensure that the government can make “effective use…of all manpower, resources, and facilities for dealing with an emergency.” And there’s no reason to fear the governor creating new laws because those laws are only in effect during an emergency and because “the Legislature’s power to end a state of emergency with a concurrent resolution is a very significant safeguard” against abuse.
The problem, of course, is that making “effective use” of “manpower, resources, and facilities” isn’t a legislative power at all—that’s an executive power. So the governor’s ability to write the law can’t be justified under that standard. And as far as the legislature’s power to declare an emergency over is concerned, recent history—to say nothing of ancient history—makes clear that lawmakers are often quite happy to wash their hands of responsibility by giving away their power to the executive branch. That’s one reason the California Constitution forbids such things, by including a separation of powers clause explicitly prohibiting anyone in the executive branch from exercising the legislative power.
Just as amazing is the fact that the Court of Appeal simply ignored even the excessively deferential standards of California law. Under existing precedent, it said, the legislature violates the Constitution if it gives the governor power while “fail[ing] to provide adequate direction” for how to use that power. Yet nowhere in its opinion does the court even discuss this part of the test. On the contrary, it admitted that the state’s Emergency Services Act “is devoid of any direction as to how the Governor should exercise his emergency police power”—but then held that there’s an “implied” requirement that he exercise that power “to provide a coordinated response to emergencies.” And anyway, the whole “adequate direction” rule is not really very “significan[t]” anyway.
In other words, the California Constitution’s separation of powers clause—written in order to safeguard a principle that for centuries has been viewed as a crucial bedrock of constitutionalism—actually doesn’t mean what it says; it just means that the legislature can violate that principle as long as it gives the governor “adequate directions”—but adequate directions also doesn’t actually mean that; it’s not that significant; all that matters is that the legislature could declare an end to the emergency…if it wants to. That’s the legal principle that the California Court of Appeal went so far out of its way to decide, rather than to dismiss a case it admitted was moot.
The Ghost Golf ruling is a perfect example of why reforms to the Administrative State are so necessary at the state, as well as the federal level. Although much attention has been devoted recently to the dangers of federal administrative agencies—particularly the problem of “deference” that’s at issue in the Loper Bright case now pending before the U.S. Supreme Court—it’s important to remember that each state has its own bureaucracies, too. These bureaucracies are overseen by governors who can wield tremendous power over the lives, liberty, and property of citizens. As we’ve pointed out before, it’s crucial that citizens be protected against abuses by state, as well as federal bureaucrats.
Fortunately, states are already waking up to this danger. Starting with Arizona in 2018, legislatures in many states have adopted Goldwater and Pacific Legal Foundation’s reform to end judicial deference to administrative agency interpretations of the law—including Indiana, Idaho, and Nebraska just this year alone. Moreover, courts in states like Michigan and Wisconsin have recently issued important rulings that impose meaningful constitutional limits on the power of governors and ensure that the U.S. Constitution’s promises are kept. And Goldwater is reining in overzealous state bureaucracies in other ways too, with multiple states adopting Goldwater-designed reforms such as the Permit Freedom Act and the Right to Earn a Living Act.
Californians, I’m afraid, aren’t so lucky.
You can read our brief in the Ghost Golf case here, and learn more about our work challenging the Administrative State here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
