After two long years, it’s past time to end Newsom’s emergency powers

In March 2020, California Gov. Gavin Newsom declared a statewide public health emergency in response to the COVID-19 pandemic, allowing him to issue lockdown orders and close businesses however he saw fit. That was 744 days ago. Yet after so long — and even as the COVID cases drop — Newsom’s emergency order remains in place.  

As long as those “emergency” powers are intact, the governor is free to use them again. That threat causes small-business owner Daryn Coleman of Fresno anxiety. For the moment, Coleman’s indoor mini-golf facility is allowed to operate, almost as in “normal times.” Yet, for Coleman and other business owners, there is a foreboding sense that we may be in the eye of a hurricane, bracing for whatever comes next. 

That anxiety will be put to rest only when the legislature reasserts its rightful role and limits the governor’s emergency powers. Under California’s emergency management statute, the governor wields unfettered power to make and change rules governing people’s lives, without involving the legislature and without opportunity for public input. As long as his emergency declaration persists, Newsom can impose any rule that elected lawmakers might enact through the legislative process. But the one-man rule is anathematic to America’s free democratic system.  

We should all be concerned about a governor holding consolidated powers to make and enforce the law. That is practically the definition of autocracy. Indeed, an insular executive almost always will act arbitrarily when allowed to make rules without brokering consensus with a legislature. We’ve seen that happen in California over the past two years as Newsom issued edicts and changed the rules like a weatherman changing his forecasts. 

True, Newsom gradually applied a lighter hand after facing a recall election last year, and he eventually suspended his “Blueprint for a Safer Economy.” But even now, there remains a risk that he could decide to re-impose occupancy restrictions in response to the next strain of the virus, or even bad strains of seasonal flu. He asserts a power to take unilateral action to respond to evolving conditions, which could mean vaccine passport rules or virtually any other measure he might think appropriate.

Coleman, who has filed a lawsuit in California to restore constitutional limits on power, poured his life savings into his dream of building Ghost Golf, a haunted house-themed golf and arcade center, only to see his livelihood nearly snuffed out by dictatorial orders in 2020-21. Most “nonessential businesses” were required to shut their doors for a few weeks before Newsom authorized a micromanaged “re-opening” of the economy. But Ghost Golf was forcibly shuttered for over a year. 

While Ghost Golf and other small enterprises were closed, Californians could patronize virtually any other business. Even during the worst waves of the virus, large retailers such as Target and Costco were crowded with hundreds of shoppers. Stringent restrictions were often loosened for bigger, more politically connected industries. Indoor mini-golf was shuttered, but movie theaters were permitted to cycle patrons in for shows. Even Disneyland reopened at reduced capacity, with up to 23,000 daily guests. Yet, for obscure reasons, Newsom’s rules prohibited “family entertainment centers” in Fresno County from allowing even one person in their doors as of April 2021 — regardless of what health and safety protocols the owners might have required of guests. 

When facing a newly emergent threat, it might make sense to allow for short-term emergency powers, but only until the legislature is capable of reconvening. The California State Legislature has been carrying on business as usual since the spring of 2020. After two years, there’s simply no reason to allow the governor to dictate policy.

The COVID crisis was certainly severe, but a public health threat can be treated as a true “emergency” for only so long. With free vaccines widely available, it should be clear the emergency is past. As others were quick to point out, California’s Super Bowl festivities in February — with its 70,000 mostly maskless fans — represented a symbolic end to the idea that we are still in the midst of an emergency.   

Perhaps you think businesses should require masks and social distancing protocols, or that vaccine mandates are worth pursuing. But others vigorously disagree. Whatever your views, we should agree that such policy issues are to be decided by elected lawmakers in the legislature, those who represent the diverse interests of all Californians. Until the governor voluntarily cedes power — or until the legislature reasserts its authority — Californians will live under Newsom’s one-man-rule. It’s past time to restore the rule of law.

Luke Wake is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. He represents Daryn Coleman in his lawsuit, Ghost Golf Inc. et. al. v. Newsom. Follow him on Twitter @rescueliberty.