I am an optimist, but also a realist. So while I feel good about our chances on Wednesday, I want to offer an assessment of all possible outcomes.
At this point, I am under no illusion that a moral victory will be satisfactory. With so many people in the throes of Gavin Newsom’s runaway one-man rule, there are no consolation prizes. We need a win.
That said, by submitting Newsom to a trial for the first time, we’ve already established something important: that the other two branches of government still very much exist. That we as legislators have standing to challenge the usurpation of lawmaking authority. That when the Court rules, the Governor must obey.
To Newsom’s chagrin, this case has affirmed the maxim set down by John Marshall, our nation’s first Chief Justice: “It is emphatically the province and duty of the judicial department to say what the law is.”
So this Wednesday, what will the Judge say the law is? I see four possibilities.
Outcome 1: Newsom wins. Obviously, this is the worst outcome, although we could appeal. He could prevail either on the merits or on a technicality.
Outcome 2: We win a narrow victory. This is where Newsom has started to place all his chips. In his Trial Brief, he barely even tries to defend the legality of his conduct. Instead, he implores the Court to limit its ruling to one Executive Order – in a word, damage control.
In our view, that’s insanity. Our Complaint clearly asks for a permanent injunction against all such unlawful orders. While this outcome would still have value, affirming that the Governor isn’t above the law, it is not what we are hoping for.
Outcome 3: We win a full victory. This would “enjoin the Governor from further exercising legislative powers in violation of the California Constitution.” Newsom would be legally restrained – the only antidote to his historic lack of self-restraint.
A number of his previous orders would immediately be exposed as unlawful, while others may become newly vulnerable. As a matter of law, our republican form of government would be vindicated.
Outcome 4: The Emergency Services Act is ruled unconstitutional. At the last hearing, Newsom’s lawyer himself said this is “one of the possible outcomes of the case.” It would result in the immediate termination of the State of Emergency and all emergency orders.
While this is not the most most probable initial outcome, if it did happen, Newsom would seek an immediate stay of the ruling while he appealed.
The constitutionality of the Emergency Services Act is a question that would inevitably be decided by the California Supreme Court – which may be where this case ends up, one way or the other.