It’s been 200 days since Gavin Newsom declared the State of Emergency. And it’s been exactly four months since I introduced an Assembly Concurrent Resolution to terminate it.
I ask Newsom this question: what are the conditions under which your State of Emergency, as a political/legal state of affairs, will cease to be in effect statewide?
The Emergency Services Act does not let him hang onto “emergency powers” as long as he wants. It is very specific: “The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant.”
Which brings me to the Pennsylvania case – a ray of hope. Last week, a U.S. District Court struck down Governor Tom Wolfe’s stay-at-home order and business closure order. While no Governor has acted as abusively as Gavin Newsom, Wolfe has given him a run for his money.
The Court explained, “There is no question that our Founders abhorred the concept of one-person rule. They decried government by fiat.”
The case sets forth a crucially important point of law: that a Governor’s restrictions on liberty are subject to more scrutiny in Month 7 of an emergency than in Month 1. As the Court says, “Deference cannot go on forever. It is no longer March.”
In our own case against Newsom, we make a similar point, telling the Court we have “entered the seventh month of the COVID-19 pandemic, with no apparent end in sight.”
Others are coming around to this view. Supreme Court Justice Samuel Alito recently wrote that “a public health emergency does not give Governors carte blanche to disregard the Constitution for as long as the medical problem persists.”
And constitutional scholars wrote in the Harvard Law Review that courts should only give a Governor leeway when “a crisis is of finite – and brief – duration.”
The tide is turning. It’s only a matter of time before Newsom faces a legal reckoning. In fact, the hearing on our dispositive motion is in just a few weeks.
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