Shutting Down California’s Shutdowns

December 31, 2020
By Jon Riches

The Goldwater Institute today joined with officials from San Bernardino County, California, to urge that state’s Supreme Court to hear a case challenging the legality of Governor Gavin Newsom’s most recent stay-at-home order. 

Last March, Newsom issued the first stay-at-home order, telling California’s 40 million residents to stay inside their homes unless they were performing activities the Governor deemed “essential.” That order is now on its third extension, and it has mandated that countless businesses, schools, and churches be closed in the nation’s most populous state. 

State courts have already signaled that Newsom’s orders exceed his authority, even under California’s broadly written Emergency Services Act. Judges in Sutter County and San Diego County have declared the business shutdowns unlawful, and although those cases are now being appealed, sheriffs in Los Angeles, Orange, San Bernardino, and other counties have announced that they will not enforce the orders.

On December 15, San Bernardino County filed a lawsuit in the California Supreme Court, asking the justices to invalidate the orders. Among other things, it argues that the Governor and other executive branch officials have exceeded their authority under the California Constitution’s separation of powers doctrine, by making and enforcing rules without legislative involvement.

With the assistance of American Freedom Network Attorney Scott Street, the Goldwater Institute joined in asking the California Supreme Court to take this important case. Goldwater’s American Freedom Network is our national network of volunteer attorneys, in all 50 states, who defend Americans’ constitutional rights and litigate for liberty.

In its amicus curiae letter, the Institute notes that state constitutions frequently provide greater protection for individual liberty than the federal Constitution. This is particularly important in the context of the separation of powers doctrine, which ensures that no branch of government exercises the authority of another. In this case, California’s executive has exercised unprecedented and extraordinary powers to regulate private conduct across the state—and to do so into the indefinite future. 

Like other states, California adopted its Emergency Services Act with a sudden, catastrophic, and temporary emergency in mind. It was designed to allow executive officials to protect the public during a short period, until order could be restored, or until the people’s elected representatives could convene to work out new rules to deal with a new state of affairs. The Act was never intended to work as a permanent substitute for the ordinary constitutional process. As the pandemic enters its second year, it’s long past time for that constitutional order to be restored.

If you are an attorney interested in participating in the American Freedom Network, you can find more information here. If you’re a citizen who needs help defending your rights, you can find more information here.

Jon Riches is the Director of National Litigation at the Goldwater Institute.