Goldwater Brief: California Governor’s COVID Overreach Should Not Stand

April 29, 2021
By Timothy Sandefur

A decade ago, Daryn Coleman and his wife invested their life savings into Ghost Golf, a family-owned entertainment center that features a spooky miniature golf course. In 2020, the COVID-19 pandemic shut them down, and after they spent thousands of dollars to install safety devices, they learned that the state would still not allow them to open because of Governor Gavin Newsom’s unconstitutional set of restrictions. Ghost Golf has been closed for months, costing the family tens of thousands of dollars—with no relief in sight.

Then Gov. Newsom issued what he called a “Blueprint for a Safer Economy”—which consists of a complex and constantly-changing set of rules for when and how businesses can reopen. The problem with that is, governors aren’t supposed to make law. That’s the legislature’s job. Now, the Goldwater Institute is joining with our friends at the Pacific Legal Foundation to fight back against his violation of constitutional principles.

Gov. Newsom has argued that the emergency of the pandemic gives him power to act without input from the legislature. Pointing to the state’s Emergency Services Act, he claims that he can not only suspend existing laws but write new rules to govern how businesses operate. But as we argue in our brief, that’s not what the Emergency Services Act intended. Its authors had in mind the kind of emergency that prevents the state’s legislature from doing business—situations like earthquakes or nuclear attacks which might require the governor to act unilaterally for brief periods. But California’s legislature is actually in session, and is doing business now. That makes it hard to argue that the governor must act without input from the people’s elected representatives.

California’s legal traditions make that an even more implausible argument. The Golden State is unusual in that its constitution gives the governor relatively little power. In fact, some scholars have argued that California doesn’t really have a governor so much as committee made up of several elected officials, all of them independently elected. The Kentucky Supreme Court, in upholding that state’s recent emergency orders, ruled that the Kentucky Constitution creates a strong governor (in part because the legislature only meets every other year), and therefore that the state’s top executive has broad power to act without legislative input. But the reverse is true in California. Not only is the legislature actually in session now, but the state’s legal traditions show that Californians have never been willing to give a strong governor broad powers to act on his own.

In addition to that Kentucky case, our brief also looks at recent decisions from the Michigan and Wisconsin Supreme Courts to compare how those states have addressed the constitutionality of their emergency procedures. Those states both held that when the legislature is capable of acting, the governor can’t simply take power into his own hands—as Gov. Newsom has done.

What’s more, Newsom’s orders don’t qualify as the kind of thing governors are allowed to do under California’s emergency laws. Those laws give the governor power to issue orders—that is, temporary commands—in time of emergency. But the “Blueprint” isn’t an order. It’s a set of rules that control how businesses are allowed to operate into the indefinite future. That makes it a law—and governors don’t write laws; legislators do. These questions about constitutional law might sound abstract, but they have profound real-world consequences for real people, right now—such as the owners of Ghost Golf.

The reason our state and federal constitutions include rules such as “separation of powers” and “checks and balances” is to protect individual freedom. Whatever safety reforms need to be put in place in light of the pandemic, those reforms have to be balanced with the rights of Californians to earn a living for themselves and their families. That’s just what the constitutional lawmaking process is for. But instead of following that process, Gov. Newsom has chosen to write his own set of rules to regulate 40 million Californians into the indefinite future. That is an unprecedented violation of the California Constitution—and one the state’s courts should not tolerate.

You can read our brief here, and you can read all about the case here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.