How Long Will Newsom Govern by Decree?

Last week, Gov. Gavin Newsom extended two of his pandemic decrees until March 31, indicating that he has no present intention of withdrawing the emergency declaration he issued 20 months ago.

It calls to mind David’s plaintive question in Psalm 13, “How long, O Lord?”

Under that emergency declaration, Newsom has suspended or altered more than 400 laws and regulations and, in effect, issued dozens of his own laws without going through the legislative process.

While many are relatively mundane, some have had profound impacts, particularly mandatory shutdowns of countless small businesses and vaccination and mask-wearing orders.

The closures triggered a severe recession as more than 2 million jobs were erased, quadrupling the state’s unemployment rate. Subsequently, Newsom repeatedly eased his shutdown orders, then reimposed them as COVID-19 waxed and waned.

Vaccination Orders for Teachers, State Employees

Newsom has defended recent mandatory vaccination orders for teachers and state employees by citing a new uptick in infection rates, also the rationale for last week’s action affecting the employment of health care workers.

Newsom cited “the potential beginning of a new surge in COVID-19 cases” and “short-staffed and backlogged” health care facilities.

Erin Mellon, a Newsom spokesperson, told CalMatters’ reporter Emily Hoeven on Sunday: “The state of emergency ensures the state can continue to respond quickly to evolving conditions as the pandemic persists. As we have seen, this virus and variants are unpredictable. The state of emergency will be ended once conditions no longer warrant an emergency response.”

That’s the rub.

Public health officials have concluded that COVID-19 may never be fully or even almost fully eradicated, as polio was more than a half-century ago.

Rather, the virus will continue to mutate, much like influenza, and will require continuing evolution of vaccines and treatments to keep it at bay. We may manage it, but probably will not eliminate it.

Indefinite Emergency Declaration?

Given that scientific consensus, Newsom could continue his March 4, 2020, emergency declaration indefinitely and thus continue to govern by decree, further eroding the American concept of checks and balances via three equal branches of government.

It is, as opined in this space earlier, an experiment in the system of parliamentary government used in much of the world, including in England and its former colonies, such as Canada and Australia.

In those countries, the party that wins a majority of legislative seats, or fashions a coalition majority, also controls the executive branch. The head of the majority party – the prime minister – is empowered to issue decrees with the force of law as long as he or she retains a legislative majority.

Newsom’s Democratic Party holds massive majorities in both legislative houses and their leaders are largely content to allow Newsom to govern by decree since they agree, for the most part, with what he has been doing. It avoids the messy, semi-transparent process of drafting and passing laws that can be challenged in court or by referendum.

Opaque Governing Process

Newsom and legislative leaders can work out what they want to do behind closed doors – with input from lobbyists for affected interest groups, of course – and either have Newsom embody it in an executive order or quickly put it into law.

The increasingly opaque state budget is an example of the latter. The Legislature passes a shell budget by June 15 each year, Newsom signs it and then it’s fleshed out over ensuing months with countless “trailer bills” that often make major policy changes with virtually no outside input.

Whatever you call it, this system of governance by gubernatorial decree and hide-the-pea legislation may be Democratic but certainly is not democratic.

About the Author

Dan Walters has been a journalist for nearly 60 years, spending all but a few of them working for California newspapers. He now writes for CalMatters, a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters.  For more columns by Dan Walters, go to calmatters.org/commentary.