Newsom executive orders test constitutional bounds — and legislative goodwill

SAN FRANCISCO — As the California Legislature remains sidelined during the coronavirus pandemic, Gov. Gavin Newsom has been governing the nation’s most populous state essentially on his own, issuing an unprecedented number of executive orders.

Newsom has used his executive authority to shut down businesses, move local elections to vote-by-mail, accelerate spending on homeless shelters, alter court proceedings and provide benefits for essential workers. He’s signed 32 orders since March 4, when the state announced its first official death from the virus.

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„His powers are essentially, virtually, without limit,“ said Steve Merksamer, a Sacramento political consultant who was chief of staff to former Gov. George Deukmejian. „The only real limitation, besides the Constitution, is common sense.“

Residents and leaders from both parties have given Newsom high marks for his handling of the crisis so far, especially after his early stay-at-home order was widely credited for helping control the spread of infection in California.

But state lawmakers who have been on recess for more than a month are starting to bristle at the governor’s seemingly unilateral decision making. They began airing public frustrations for the first time after Newsom went on MSNBC’s „The Rachel Maddow Show“ on April 7 to announce he was spending nearly $1 billion on masks — a massive purchase that many lawmakers said they heard about through the media despite their authority over state appropriations.

“We have not been engaged, and we have been trying to engage,” said Assemblyman Jim Wood (D-Santa Rosa) at an Assembly budget hearing Monday, one of only two Capitol meetings scheduled in apparent response to the mask buy. “We often as legislators hear maybe five minutes before an executive order comes out or by watching live the governor’s daily updates to get information, and that’s a challenge.“

As Newsom shifts from crisis mode to managing the long-term economic fallout, his orders are coming under more scrutiny not just from lawmakers but industry groups, who are likewise re-engaging in Sacramento policymaking.

Normally, the state Capitol would be in the thick of legislative action this time of year, nearing the peak of policy committee hearings and budget reviews that precede floor votes and budget passage in subsequent months. Lobbyists and legislators alike make their mark each spring, influencing which bills advance and which ones die.

But like their constituents, lawmakers remain stuck at home in districts across California. The third branch of government — courts — has likewise shut down most activities for the time being. That leaves Newsom nearly alone to decide how to flex California laws in the coronavirus emergency.

States are afforded broad authority under constitutional law, which grants them „police power“ to improve the health, safety, morals and general welfare of the population. Under California’s Emergency Services Act, the governor’s powers are virtually unlimited — he can suspend any law or regulation during a state of emergency.

„Under the law, that act instantaneously activates a huge transfer of power from the legislative branch to the executive branch,“ said Garry South, an adviser to former Gov. Gray Davis during the 2001 energy crisis. „The governor can ignore laws, unilaterally suspend [environmental laws] and other regulations, spend state funds in ways other than those allocated by the Legislature, and essentially govern via executive order.“

Besides his executive orders, Newsom has brokered deals with private companies, as when he announced a 90-day mortgage grace period with four banks. And he’s used his bully pulpit to encourage local governments to fill in gaps, as in his March 19 stay-at-home order, which was silent on enforcement other than to classify violations as misdemeanors.

„That one executive order could have blown up on him 10 different ways, and it didn’t,“ said Susan Kennedy, who served as a cabinet secretary to Davis and chief of staff to former Gov. Arnold Schwarzenegger and is now vice president of policy at Lyft. „He’s been very good at sort of calibrating how strong he goes.“

The Legislature is getting restless. The Assembly and Senate are not expected to return to Sacramento until May 4 at the earliest. The extended layoff reflects not just California’s efforts to keep people at home, but also the logistical problem of figuring out how 120 members can pass bills while retaining physical social distance.

Assemblyman Adam Gray (D-Merced) said he repeatedly asked Newsom’s office for details about personal protective equipment, to no avail.

“I would hope that we don’t have to have legislative oversight hearings to receive information,” Gray said. “It is frustrating as can be that I know more about the number of ventilators that California is sending to other states than I do about the number of ventilators being sent to my district.”

Newsom said in his press briefing Tuesday that he had talked to more than half of the state’s 120 lawmakers in the preceding four days. „We’re trying to do everything in our power to be responsive,“ he said. „And to the extent we can even be more responsive, we’re committed to doing that.“

California governors have long made liberal use of executive orders during states of emergency. Former Gov. Jerry Brown relied on executive orders after a series of wildfires hit in recent years to accelerate cleanup and rebuilding, reopen schools and extend tax deadlines. Former Governors Pete Wilson and Deukmejian each used executive orders to bypass environmental rules to speed up repairs to freeways after the Northridge and Loma Linda earthquakes, respectively.

But none had to grapple with an emergency that spans the entire state and has no clear end to its economic havoc. Nor were they left to essentially govern alone, without the Legislature in session and with courts delaying proceedings.

„We had earthquakes, we had fires, we had the biggest flood in California history, we had recalls of tainted foods, I think we even had a prison riot, but we never had a pandemic,“ Merksamer said.

So far, Newsom has triggered a few predictable political landmines, drawing lawsuits from the National Rifle Association and several churches in Southern California over the stay-at-home order for not including gun stores or religious gatherings as essential.

Some of Newsom’s orders are narrowly tailored, while others are broad, altering rules in a half-dozen areas in a single swoop. An April 16 order, for example, allows companies to run background checks based on names rather than fingerprints, extends licensing deadlines for real estate agencies, ship pilots and ambulance drivers and streamlines the process for California State University to change its admission requirements, among other provisions.

Other orders are topical but insert an incongruous item at the end, as in an April 4 order enabling child care for essential workers but also extending the time for Newsom to make an appointment to the Delta Stewardship Council.

Many orders are written to expire in 60 days, but others are open ended, like a March 18 order waiving state open-meeting rules so agencies can hold remote meetings with no physical access. That worries some government watchdogs.

„The temptation to leave these orders in place longer than necessary is going to be great, so I think we have to be very vigilant to ensure the governor doesn’t let these stand for any longer than absolutely necessary,“ said David Snyder, executive director of the First Amendment Coalition.

Civil rights advocates are concerned about a March 27 order that let the court system extend deadlines for criminal cases. People who have been arrested can now sit in jail for up to a week before seeing a judge, rather than 48 hours, and they can wait up to 30 days before receiving a preliminary hearing, up from 10 days.

The latter extension appears to violate the state law that governs emergencies, but is in line with Newsom’s order, said Elisa Della-Piana, legal director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.

„The limits of the executive power in the time of emergency really haven’t been tested in my lifetime,“ she said. „I think it’s an open question whether during this crisis, especially if it goes on for a long time, we will see suits challenging and courts establishing any limits on the executive’s authority.“

Another that’s raised eyebrows is an April 16 order making paid sick leave available to all food-sector workers at large employers who are affected by the virus.

„No one’s really going to quarrel with the idea, but there’s a case to be made that it should be done legislatively,“ said Rob Stutzman, a former adviser to Schwarzenegger. „I’m not the lawyer, but that one raises questions. Because if you can start imposing an economic burden like that on employers, whether it’s a good idea or not, if I’m in the Legislature, I would start asking, ‘What am I here for?'“

One constitutional scholar drew a distinction between orders that try to prevent the spread of the disease itself and those that aim to soften the economic fallout. He said the sick-leave order could violate the constitutional ban on interfering with legal contracts.

„I don’t think he has the authority to do that,“ said John Eastman, a constitutional law professor at Chapman University and a senior fellow at the Claremont Institute, a limited-government think tank. „The Legislature doesn’t [have the authority], either.“

„At some point there has to be a judicial assessment of whether the exercise of these statutory authorities met the statutory requirement that the measures be necessary to prevent the spread of the disease,“ he said. „Otherwise we’re just living by executive order without any legislative or judicial judgment.“

So far, though, Newsom largely appears to be on solid ground and has strong support from the public, one former Republican gubernatorial adviser said.

„At this juncture I don’t see the political will by the public to challenge Gov. Newsom on what he’s done, nor do I see the lane where there’s a clear violation of the California Constitution,“ said Sean Walsh, who runs a political consulting firm with Wilson and was a senior policy adviser to Schwarzenegger. „I think he’s in a pretty safe harbor right now for what he’s done to date.“

Newsom hasn’t acquiesced to some requests to bend rules, like the League of California Cities’ ask for more time to produce public records, the California Chamber of Commerce’s desired six-month moratorium on active rulemakings or civil rights groups’ request to stop cars from being towed other than for criminal violations or public-safety reasons.

Going forward, Newsom’s path may narrow. Business groups are up in arms about Newsom reportedly contemplating an executive order to provide workers’ compensation benefits to essential workers with Covid-19 without them having to prove they contracted the disease on the job.

„He’s really entering the most challenging part,“ Kennedy said. „It’s pretty easy to write executive orders when you have an earthquake or a flood or a crisis that is kind of immediate, even something as unknown as a pandemic, but now we’re into economic recovery and he’s going to now start moving into areas where executive authority crosses over into commercial and legislative authority and things like that. It’s going to make it much more challenging.“

Mackenzie Mays and Carla Marinucci contributed to this report.

Source: politico.com
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