Just before Thanksgiving we received a mixed order from the Court of Appeals.
The good news: the Court declined Gov. Newsom’s request to summarily overrule the Superior Court’s judgment against him. Instead, the Court has teed up briefing and oral argument that will result in a precedent-setting written decision.
The bad news: the injunction will remain on hold in the meantime, which is what we tried to avoid by turning around a Preliminary Opposition in 48 hours. One consolation is the Court has now set an expedited briefing schedule; James and I have until just December 4 to submit a full “Return” in defense of the trial court’s ruling, and then Newsom has 10 days to file a Reply. The parties will then face off at the Third District Court of Appeals in Sacramento.
With Newsom behaving as recklessly as ever, this delay is frustrating to say the least. But the stakes are now higher than before. If we win, it will be the first time a Court of Appeals has ever ruled a Governor’s emergency action unconstitutional. Such a decision will be binding on any Superior Court in any of California’s 58 counties. It would be the key precedent for direct challenges to any of Newsom’s other emergency orders, including the lockdown.
Even more importantly: It will lay to rest Newsom’s autocratic ambitions once and for all, along with those of any future Governor who would claim an emergency to rule the State by fiat. It will move us off the path of Rome, where a “dictator” (it was actually called that) was appointed during emergencies, until eventually someone decided to cut out the “during emergencies” part.
This is not hyperbole. Governor Newsom has actually said his hairbrained lockdown scheme doesn’t include the color green because “we don’t believe there’s a green light that says go back to the way things were.” He’s also hailed COVID-19 as an “opportunity to reshape the way we do business and how we govern,” dawning a “new progressive era.”
Even if one day Newsom does let the COVID-19 State of Emergency end, he could all-too-easily declare something else to be an “emergency” so that the New Progressive Era can continue. Another virus? Climate change? Insufficient wokeness? The possibilities are endless. As it is, even prison overcrowding has been used for a State of Emergency.
Sadly, many legislators would be just fine with permanent one-man rule, as their jobs would still exist in form – just as the Roman Senate continued to exist as an appendage to Augustus and just as present-day China has a Congress and Russia has its Duma.
That is why as dreadful as Newsom’s current orders are, something even larger is at stake: the very foundation of our constitutional form of government. Separation of powers, checks and balances, the rule of law – these are the gifts from our Founders and the safeguards for our God-given freedoms. Every generation has fought for them and passed them on to the next. The time for us to fight is now.