September 16, 2020
By Jon Riches
As the coronavirus pandemic drags into the fall, and as more government responses to the virus are declared unlawful, two legal limitations to executive action are becoming increasingly apparent. First, the extraordinary powers that governors and mayors assumed that were predicated on temporary emergency authorities do not apply in perpetuity or to a prolonged public health issue. Second, executive actions that are not carefully tailored, or that arbitrarily discriminate against some individuals or businesses and not others, are legally suspect.
A new case challenging Governor Gavin Newsom’s stay-at-home order squarely raises both issues. The lawsuit, brought by the California Fitness Alliance (CFA), an association made up of dozens of fitness businesses, both large and small, asserts that Governor Newsom’s stay-at-home order, closing most gyms in the state, exceeds his authority under California law.
The CFA is represented by Scott Street, an attorney affiliated with the American Freedom Network, the Goldwater Institute’s nationwide network of attorneys. A similar case has been brought by an AFN attorney in Pennsylvania, arguing that the state’s process of granting exceptions to the shutdown without any rhyme or reason violates the equal protection and due process clauses of the federal Constitution.
In its complaint, the CFA observes that when Governor Newsom issued the first statewide stay-at-home order in the country, the Governor declared that “this is not a permanent state, this is a moment in time.” The Governor went on to pronounce that, “I don’t expect this to be many, many months…”
Now, “many, many months” later, Governor Newsom has repealed, reinstated, and amended his stay-at-home order, which still prohibits the operation of thousands of private businesses, including gyms and fitness centers. This violates California law, which requires emergency actions to be terminated at the “earliest possible date that conditions warrant.”
What’s worse, the California governor has made no attempt to narrow his order to specifically address public health or safety concerns. State officials have not cited evidence for the closure of gyms, apart from vague references to breathing indoors; concerns that would apply similarly to grocery stores, home improvement stores, liquor stores, or the thousands of other businesses that remain open in California. The CFA, on the other hand, cites compelling evidence, including evidence from the nearly 50 million gym check-ins that have occurred since the outbreak of the coronavirus, that it is not more likely for the virus to spread at indoor fitness facilities than it is at other locations if they all follow the same sanitation, capacity, and mask standards.
Perhaps this is why indoor fitness activities have resumed in the other 49 states.
Several months ago, government officials were faced with time-sensitive decisions in an environment of significant uncertainty. Much has been learned since—not least of which is that government officials cannot exercise emergency power forever. And when they do, they can’t do so in a way that is arbitrary, irrational, and not carefully measured against a public health threat. It appears Governor Newsom might need to get in a few more reps on these crucial issues.
Jon Riches is the Director of National Litigation at the Goldwater Institute.