SEPTEMBER 8, 2020

There it is. In his latest filing in our case, Gavin Newsom bluntly states that California is now an autocracy: “The Emergency Services Act,” he writes, “centralizes the State’s powers in the hands of the Governor.”

I spent the holiday weekend writing our brief making the full case that Newsom has abused his power and violated the Constitution. (I might have to start admitting I’m a lawyer again). This latest jarring statement crystallized what’s at stake.

I will make the full brief available once it’s filed with the court later this week, but here’s how it begins:

In the case before the court, Defendant Gavin Newsom argues that the six-month-and-counting State of Emergency “centralizes the State’s powers in the hands of the Governor.” This disquieting claim belies California law and defies America’s first principles. As James Madison wrote in Federalist Paper No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny.”

The brief’s introduction then places our present predicament in the context of America’s Founding:

It was no era of tranquility that produced this founding principle. The statesmen who fashioned it had just led the emerging nation through an eight-year war, on American soil, that killed one percent of the population. Even as they drafted a Constitution whose primary object was to unify political authority, a separation of legislative and executive power was what most distinguished the new country from the monarchy they left behind.  

On page 12 of the current draft, I return to Newsom’s latest statement:

Defendant asserts, without qualification or caveat, that the Act “centralizes the State’s powers in the hands of the Governor.” This claim is as dangerous as it is outlandish. While the Act gives the Governor “considerable power,” that power is cabined by the text of the statute itself, by the structural constraints of the Constitution, and by the specific purpose for which it is conferred. The Emergency Services Act does not and could not inaugurate an autocracy in the State of California. Such a wild misapprehension of his own authority is precisely why this case demands a resolution on the merits.

We will soon know whether the judiciary, the best safeguard of liberty that enlightened statesman have conceived, will defend our republican form of government.

As I tell the court: “If the executive branch can openly assume the powers of a second branch of government without correction by the third, then our Constitution is reduced to parchment.”

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