One of the most important principles of constitutional law is the separation of powers, which forbids, say, presidents or governors writing laws. The executive branch is supposed to execute the laws, not write them. That’s crucial because if the same person makes the law and enforces it, the idea of constitutional democracy will collapse into something indistinguishable from monarchy. And that’s why most state constitutions include separation-of-powers clauses that bar governors from writing laws. Unfortunately, the COVID pandemic led some state governors to ignore that principle—and none are more guilty than California Gov. Gavin Newsom. Now, in a brief filed today in the California Supreme Court, the Goldwater Institute is urging the Golden State’s justices to make clear that this critical constitutional idea still has force.
After shutting down the state with a series of emergency executive orders, Gov. Newsom announced what he called the Blueprint for a Safer Economy, which established a set of complicated rules governing how or when the shutdown would expire. But that’s executive lawmaking, because it’s establishing rules that govern the indefinite future—and that’s not allowed. Rules like that are supposed to be written by the people’s elected representatives. So business owners in the Fresno area sued, represented by our friends at Pacific Legal Foundation, arguing that the Blueprint violated the separation-of-powers rule.
Ultimately, however, the pandemic ended, and Gov. Newsom rescinded the Blueprint before the court issued a ruling. Normally, that would render a case “moot,” meaning the judges must dismiss the lawsuit instead of deciding it. Yet instead of following that longstanding rule, the judges chose to decide the case anyway—not because it would make a difference to the businesses, but because the justices wanted to officially “endorse” a ruling by a different court that upheld the governor’s emergency powers in a different context. And they went further: the governor’s emergency powers, said the California Court of Appeal justices, include “the power to legislate.”
In support of that shocking statement, the justices noted that the state’s Emergency Services Act gives the governor “all police power”—and that it “does not impose any express standards” that limit that power. But, of course, such a blank check on government authority is just what the separation-of-powers clause forbids.
The result is an almost perfect example of the dangers of the so-called Administrative State. The Blueprint was written behind closed doors by bureaucrats without input from the public, let alone from elected lawmakers. And in upholding such extraordinary authority—something it chose to do in violation of longstanding rules about jurisdiction—the justices gave their blessing to the idea that the executive branch can write the law as well as enforcing it.
As we argue in our brief, there’s no doubt that governors have extraordinary powers in times of emergency. But that doesn’t include the power to make the laws. For a court to authorize that is to establish a dangerous precedent that encourages officials to find new “emergencies” in order to wield that extraordinary power. That danger was just why the authors of the California Constitution chose to include a provision saying that “[p]ersons charged with the exercise of one power may not exercise either of the others.”
Now the state’s high court will have to decide whether that constitutional provision still has any meaning or not.
Read our brief here.
You can learn more about the Goldwater Institute’s work to rein in the Administrative State here.
