New Senate Bill Would Limit Emergency Powers of Governor, State Agencies

A new bill to limit the power of the Governor and state agencies during future state-of-emergencies was recently introduced in the Senate.

Senate Bill 448, authored by Senator Melissa Melendez (R-Lake Elsinore), would specifically enact the Emergency Powers Limitation Act, which requires any future emergency order to be narrowly tailored to serve a compelling public health or safety purpose and limited in duration, applicability, and scope. Future emergency orders can also be challenged more quickly, with SB 448 authorizing any person to bring an action to invalidate enforcement of an emergency order that is seen as unlawful. Emergency orders issued by the Governor in the future that infringes on a constitutional right would also have to expire under a certain time period, rather than be let on indefinitely.

The bill would also limit the power of state agencies, prohibiting them from issuing an emergency order that infringes on a constitutional right in a “nontrivial” manner.

Senator Melendez wrote the bill to combat the current limits of emergency orders given by the Governor. SB 448 is largely a response to the outcry over the large number of broad emergency orders issued by Governor Gavin Newsom since the COVID-19 pandemic started in March 2020. For almost a year, many Californians have called Governor Newsom’s orders dictatorial. The state legislature, who can halt or alter emergency orders, did not do so despite calls from citizens to do so from as early as May 2020.

While the issue of Newsom’s orders are also currently playing out in court, with the state Superior Court even tentatively ruling some of his executive orders as unconstitutional in November, no new route to formally challenge the orders had been brought up since the introduction of SCR 5 late last year, which would immediately end the state of emergency in California. Senator Melendez have even noted that SB 448 is more of a backup plan to challenge Newsom’s orders if SCR 5 isn’t passed.

Another challenge to Gov. Newsom’s executive orders

“We’ve already seen what a Governor can do when his executive authority goes unchecked,” said Melendez on Wednesday. “If the Legislature won’t act to end the state-of-emergency by passing SCR 5 and return response efforts to the locals where they belong, then we must change the rules a future Governor may follow when exerting their authority.

“It’s been a year since Governor Newsom declared a state-of-emergency for the state of California,” added Senator Melendez. “Since that day, thousands of businesses have permanently closed their doors; millions of Californians have lost their jobs and are on unemployment; EDD has doled out billions of dollars in fraudulent claims; and shuttered schools have tarnished the educational experience for California children. It’s time we take this unilateral control away from the Governor for good because Californians have had enough!”

Like SCR 5, many Republican lawmakers quickly announced their support of the bill after introduction, with many citizens groups also announcing their support on Wednesday.

“That lawsuit is currently being tabled by the Governor,” explained San Diego lawyer Gail Howard, who brought up local challenges to lockdown orders last year, to the Globe. “The legislature won’t do anything since they are majority Democrat. The Governor himself won’t stop. So if the orders aren’t ended soon, like SCR 5 wants, then we have this to go on. Californians who want to reign in Newsom aren’t giving up, and we’re starting to see more and more victories, like Newsom inching closer to a recall vote. This bill is just another indicator that many in the state want this all stopped.”

SB 448 is due to be heard in the Senate Governmental Organization and Judicial Committees in the coming weeks.