This article about a California court decision regarding Gov. Gavin Newsom’s COVID-19 emergency powers was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On November 2, 2020, Judge Sarah E. Heckman ruled that the Governor’s power under the California Emergency Services Act (CESA) only included the power to suspend statutes, not to change them via executive order. While the decision clearly limits the Governor’s power to act in an emergency and raises questions about the validity of some of the Governor’s COVID-19 orders, it does not affect his order about the election that was the basis for the lawsuit, nor would it, for example, overturn California’s face covering mandate and other restrictions not issued under CESA.
It is appropriate for the judiciary to address the constitutional limits on actions by the other branches, and it’s not a bad thing to limit the powers of the governor, even in an emergency. But the narrow construction of the Governor’s power to act in an emergency under the constitution is concerning.
COVID-19 emergency powers decision
Judge Heckman ruled that the decision was not moot – in other words, that it was not a controversy with no practical significance. She based that on the importance of the issue and its resolution, the fact that the State of Emergency from COVID-19 is continuing, and the governor continues to have authority to act under CESA, and the fact that the executive order challenged by plaintiffs was not formally repealed. This specific order ordered the issuing of mail ballots.
The court also found that CESA was not unconstitutional, because correctly interpreted, it does not delegate legislative power to the governor, which would violate the constitution. This needs some explaining.
Under traditional principles of constitutional law, since the legislature was given the power to legislate by the people, the legislature cannot just give this power away – the people are the final authority, and only they can give it away – and hence, the legislature cannot delegate power to the executive to legislate. If interpreted strictly, this could cause a lot of problems for the modern state, where the executive does a lot of rulemakings, but it’s not interpreted strictly. In fact, at the federal level, the non-delegation doctrine is very weak.
But in more than one state, the non-delegation doctrine has more of a bite. California gives it somewhat more of a bite. Whatever the general delegation power, the argument the plaintiffs made was that if CESA gives the governor the power to legislate, it is unconstitutional under the non-delegation doctrine. The judge was sympathetic to this and cited a California Supreme Court case and several courts of appeals decisions in support.
But she interpreted the act not to violate the non-delegation doctrine. She focused on a distinction between section 8567 of CESA, which allowed the governor to “make, amend and rescind orders and regulations” and §8571 which allows the governor to “suspend any regulatory statute, or statute prescribing the procedure for the conduct of state business, or the orders, rules, or regulations of any state agency.” The distinction between regulations in the first and statute in the second suggested, in her view, (not unreasonably) that the statute allowed the governor to suspend statutes but not amend them.
This is a plausible interpretation, but it’s not the only possible one. For a number of reasons, you could interpret the statute differently.
First, §8627 gives the governor “the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter.”
The police power of the state is a source of the ability of the state to legislate in public health, and this language can be read to allow overriding statutes. Indeed, if it does not mean that, it’s hard to see why §8627 is necessary if that’s not the meaning since §8567 and §8571 already give authority to amend orders and regulations and suspend statutes.
The second part of §8571 suggests the power to suspend should be used “where the Governor determines and declares that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.”
But it might only be necessary to amend a statute to avoid the problem of strict compliance; the view that the clause, aiming to give the Governor the power to avoid the harms of strict compliance, only intended to allow the extreme measure of suspending the statute but not the lesser measure of modifying it to the minimum extent necessary is somewhat unconvincing. And suspending statutes without being able to offer an alternative can create problems in handling the emergency, and it’s probably not what the drafter of the statute wanted.
It was, however, Judge Heckman’s view, in part because she did not see “police powers” as referring to legislation, and in part, because she was concerned that allowing the broader interpretation would violate non-delegation.
I am not sure it would. Time-limited emergency powers are not an abdication of power by the legislature. As explained by the court, the goal of non-delegation, as for other separation of power doctrine, is to prevent any branch of government from using “the complete power constitutionally vested in another or exercising power in a way which undermines the authority and independence of another.”
Emergency powers, such as for COVID-19, allow the governor to respond to an emergency that needs fast response before the legislature can act. By their nature, they are limited, and they do not undermine the authority and independence of the legislature: they’re a fill-gap. The legislature can override any such measure, and in this case, the California legislature seems to appreciate the governor’s actions.
While non-delegation is also a limit on the legislature, it’s not clear that temporary emergency powers are, in fact, a usurpation of legislative powers. To be clear, it’s important to limit executive power, since it can clearly be abused. But expansive powers during an emergency are usual in the states, though legislatures maintain tools to limit them.
This interpretation may over narrow California’s ability to respond to emergencies – a concerning result in an era where we are bound to see repeated wildfires, and – as Covid-19 taught us – other issues.
The judge, however, decided that CESA does not give the governor the power to amend statutes or legislate, only to suspend statutes. It issued a declaratory order to that effect and an injunction that Governor Newsom cannot legislate under CESA.
First, this will not affect mail voting in California, since the California legislature later passed a similar policy for mailing ballots. It also does not affect several other COVID-19 measures, because they were issued by the Department of Public Health under separate emergency powers from CESA – for example, the mask mandate was issued that way.
There is however a question of whether it affects other measures the Governor issued drawing on his authority under CESA. For example, the Governor used this to issue an authorization to local government to impose commercial eviction moratoriums; an order against price gouging; and more. Whether those will be invalid if this ruling stands would depend on whether they involved suspending laws or amending them. And the process of finding out could certainly create uncertainty.
Governor Newsom announced – unsurprisingly – an intent to appeal, so we will see what happens next.