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Governor Newsom is not only vying to wrest himself free of the Restraining Order a Superior Court imposed at our request. He’s now trying to escape the bounds of constitutional government altogether.
The California Constitution could not be clearer:
“The Legislature may make no law except by statute and may enact no statute except by bill.”
Yet Gov. Newsom is proposing a new way to make law: lavish him with praise. In his Reply Brief to the Court of Appeals, the Governor defends his unlawful Executive Order as follows: “Rather than being a unilateral assertion of executive authority, the Executive Order was made at the request of key members of the Legislature.”
That sentence would fail you out of grade school civics. For it to come from the pen of California’s Attorney General, on behalf of the Governor, in an official submission to the Court of Appeals is stunning.
Notably, the Governor seems to concede that unilateral action was not permitted. But he insists his Order became lawful because two particular legislators liked it.
This is a novel legal theory: Any individual legislator can make law via direct communication with him – or simply by cheering on his actions – and skip the legislative process.
Or maybe not any legislator. The Brief goes on to add a key caveat to this theory, explaining that Gov. Newsom “used his broad emergency powers” at the request of two legislators “of the majority party.”
It’s jarring enough to see partisanship mentioned in the same sentence as “broad emergency powers.” But why does the party of the two legislators matter at all? For it to be relevant, the Governor would have to believe the majority is free to make law however it pleases.
That’s not how our system of government works. No matter how much power one party accumulates, it can exercise that power in only one way: the legislative process set forth in the Constitution. It’s known as the rule of law, and it’s what distinguishes a constitutional government from a banana republic.
As I said in a speech on the Assembly Floor last week, no legislative process is perfect, and California’s legislative process is especially imperfect. But it certainly beats no process, as Gov. Newsom would have it.
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