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If Gov. Newsom believes his Executive Order is lawful, he has a chance to make his case in the Superior Court on June 26. Yet instead, he’s filed a 39-page brief with a Court of Appeals making a meritless argument that he should get out of the restraining order on a procedural technicality.
This sideshow, designed only for purposes of delay, is being conducted at untold public expense. Assemblyman Gallagher and I are representing ourselves at no cost to taxpayers, and we will soon be filling a formal Opposition Brief that identifies the legal problems with the Governor’s petition.
My focus here, however, is on the alarming implications of Gov. Newsom’s arguments. They show he still fails to understand the profound separation-of-powers issues presented by his unlawful conduct.
For starters, the Governor makes a sweeping and misleading claim to power. He cites Gov. Code § 8627 to claim the State of Emergency lets him exercise “the full police power of the state.” But he leaves out the end of the sentence, which says these powers are confined by “the Constitution and laws of the State of California.”
Next, Gov. Newsom grasps for some sort of precedent for a truly unprecedented Executive Order. He points to Orders from prior Governors, issued the day before an election, that “facilitate[d] voting by firefighters and EMS workers” who were “away from their homes fighting wildfires.” To put it mildly, that is not the same as overhauling an entire election 6 months in advance.
Most remarkably, the Governor points out that two particular Legislators applauded his Executive Order and claims this puts it on more solid legal ground. That amounts to a novel legal theory that individual lawmakers can change the Constitution by lavishing him with praise.
Perhaps most troubling, the Governor asserts, without evidence, that his Order was “essential” to “protecting Californians from further harm by the COVID-19 pandemic.” By claiming a Public Health justification for actions that plainly lack one, the Governor is weakening our ability to build trust for policies that are genuinely needed in relation to COVID-19 or future health threats.
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