It’s been 200 days since Gavin Newsom declared the State of Emergency. And it’s been exactly four months since I introduced an Assembly Concurrent Resolution to terminate it.
My Resolution, ACR 196, provides as follows: “An open-ended state of emergency, with boundless powers vested in a chief executive, is incompatible with democratic government.”
I ask Newsom this question: what are the conditions under which your State of Emergency, as a political/legal state of affairs, will cease to be in effect statewide?
The Emergency Services Act does not let him hang onto “emergency powers” as long as he wants. It is very specific: “The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant.”
So I ask the Governor: what are those conditions? Is it when not a single California resident has COVID-19? Is it when not a single California resident has any infectious disease?
Which brings me to the Pennsylvania case – a ray of hope. Last week, a U.S. District Court struck down Governor Tom Wolfe’s stay-at-home order and business closure order. While no Governor has acted as abusively as Gavin Newsom, Wolfe has given him a run for his money.
The Court explained, “There is no question that our Founders abhorred the concept of one-person rule. They decried government by fiat.”
The case sets forth a crucially important point of law: that a Governor’s restrictions on liberty are subject to more scrutiny in Month 7 of an emergency than in Month 1. As the Court says, “Deference cannot go on forever. It is no longer March.”
In our own case against Newsom, we make a similar point, calling on the Court to “assert itself as the guardian of California’s Constitution” as we have “entered the seventh month of the COVID-19 pandemic, with no apparent end in sight.”
Others are coming around to this view. Citing “statewide measures of indefinite duration,” Supreme Court Justice Samuel Alito recently wrote that “a public health emergency does not give Governors carte blanche to disregard the Constitution for as long as the medical problem persists.”
Similarly, a recent analysis by constitutional scholars in the Harvard Law Review argued that the traditional leeway courts give a Governor during an emergency depends on “the idea that a crisis is of finite – and brief – duration.”
It’s only a matter of time before Newsom faces a legal reckoning. In fact, the hearing on our dispositive motion is in just a few weeks.
But we also know that Newsom responds to one thing: politics. The best way to end this nightmare may be to send an emphatic statement at the ballot box.
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