Is Gov. Newsom’s Latest Emergency Order an Emergency, or Another Opportunity ?

Governor Gavin Newsom signed another storm recovery and emergency Executive Order on Monday, continuing to add state support as storms continue to batter California all over the state, the Globe reported.

The governor’s latest executive order declaring a state of emergency prompted several Globe readers to contact us, wondering if this is really an emergency worthy of the declaration, or if it is just one more opportunity for Gov. Newsom to get his mitts on more emergency funding – but more importantly, more mostly unlimited powers.

As the Globe reported, since late December, record rain and snowfall has besieged the state, responsible for at least 19 deaths, destruction all over California, and entire communities to be evacuated. As a result, in addition to local responses, both the state and federal governments have declared emergency orders, allowing extra funding to flow to the disaster areas.

On the state level, Governor Newsom issued a state of emergency over the storms earlier this month, mobilizing California agencies, including the California National Guard and the California Governor’s Office of Emergency Services (Cal OES).

At least the storms are an obvious emergency.

Last February, a GOP effort in the Assembly to end Governor Gavin Newsom’s two year COVID-19 state of emergency fell short of votes, with the Assembly voting 48-15 along party lines to keep the order in place until at least the current end date of March 31st, the Globe reported.

California Democrats just voted to continue the State of Emergency even as we host the Super Bowl. pic.twitter.com/egFMTi1TeA

— Kevin Kiley (@KevinKileyCA) February 10, 2022

That order was extended again, and again, and again. And then in the fall, on October 2022, Gov. Newsom announced he would give up his Covid emergency powers February 28, 2023, touting “California’s pandemic response saved tens of thousands of lives, protected the economy, distributed nation-leading financial assistance and built up an unprecedented public health infrastructure.”

Throughout the years of Covid, the California Legislature could have and should have ended the governor’s emergency powers. It’s as if they were afraid to.

Berkeley Law explains the Governor’s Emergency Powers when a State of Emergency is Declared:

The Emergency Services Act (ESA) gives California’s governor broad emergency authority. Typically, the state constitution requires policy decisions (what we should do going forward) to be made through the deliberative legislative process.[1] But in a crisis, that authority (what we should do right now) may be consolidated and exercised by one executive. After declaring an emergency, a governor may disregard statutory law to direct state resources in responding to the crisis. By granting the governor these powers, the state legislature delegated its power to fix public policy and deploy funds during emergencies. This raises some separation of powers concerns that, while meritorious, have not proved so severe that California risks dictatorship.

The ESA grants the governor several powers, including the power to:

• Suspend any regulatory statute, statutes for state business procedures, and any state agency edicts.[6]
• Commandeer private property or personnel (except news services).[7]
• Make expenditures from any available fund.[8]

“The law says that the Governor shall terminate the state of emergency at the earliest possible date that conditions warrant,” then-Assemblyman Kevin Kiley said in February. “And I do have to add, when you look at the Governors own behavior, when he went to a football game with 70,000 fans this past weekend and declined to wear a mask on many occasions, I’m not really sure what message that sends.”