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By California Legislator Kevin Kiley

Gavin Newsom is seizing on the Legislature’s absence to claim even more power.

Yesterday, he told the Court of Appeals to overturn our Restraining Order against him “because the Assembly has delayed its return from recess,” claiming this “current (and indefinite) hiatus” gives him greater unilateral authority.

Over the weekend, we learned that a legislator and three staff members tested positive for COVID-19. Leadership’s response was to shut down the Legislative Branch indefinitely. In an email to legislators, Speaker Anthony Rendon said “our July 13th return will be delayed” and “I do not yet know when we will return.”

I was mystified by this decision. As the Associated Press reported:

Sure enough, it took Gov. Newsom less than a day to use the Legislature’s abdication to his advantage. In a new filing with the Appeals Court, he argues the Court should immediately remove any restraints on his authority:

“It is now even more important for this Court to act because the Assembly has delayed its return from recess because of an outbreak of the COVID-19 virus.”

The brief goes on to cite “the Legislature’s current (and indefinite) hiatus” as a reason why the Governor needs more power “now.” Once again, the collapse of California into one-man rule is a two-step: an assumption of power by the Governor and an abdication of responsibility by the Legislature.

But the Governor’s brief saves its most breathtaking claim for last, suggesting he needs to provide “no evidence at all” that his actions are constitutional:

“Indeed, the basic balancing the court failed to perform required no evidence at all—the exigencies of the COVID-19 pandemic and the need to provide guidance for the conduct of a safe election, are readily apparent.”

This is a novel and alarming argument. The Governor is not just claiming unbounded power in relation to the Legislature. He’s now saying the judicial branch has no role in checking that power either. Courts should simply assume that any and all actions he undertakes are justified by the “readily apparent” threat of the pandemic.

As readers of this blog know, on June 12 a Superior Court granted our request for a Temporary Restraining Order against Gov. Newsom’s Executive Order N-67-20. The Court also restrained him from “exercising any further legislative powers in violation of the California Constitution.”

The Governor’s lawyers furiously churned out an appeal, in a delay tactic that’s brought weeks of briefing. What’s directly at issue in the case is an Order where the Governor sought to single-handedly remake November’s election. But the stakes are even higher.

On this point, the Governor agrees. His new brief says “there is a significant possibility that the scenario presented here will recur” – namely, a court restraining his unconstitutional conduct. It’s “vitally necessary” to overturn our Restraining Order, he says, to “discourage” similar challenges and stop other courts from “seeking to enjoin such powers.”

Gov. Newsom knows that his ability to rule the state by decree is on the line. Assemblyman Gallagher and I are fighting for Separation of Powers, for our Constitution, and for the right of Californians to participate in their government.

It would be nice if the Legislature’s leaders were fighting with us rather than shutting our branch down.

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