Can Assemblymen Kiley and Gallagher Take Down Gov. Newsom’s ‘Legal House of Cards?’

California Gov. Gavin Newsom has run roughshod over the people and businesses in this state since March with 58 executive orders, and many of them legally dubious if not outright unconstitutional, all under the guise of “public health.”

At the crux of the lawsuit filed by Assemblymen James Gallagher and Kevin Kiley is whether the governor has the emergency authority to make these decisions without legislative authority. Gallagher and Kiley say the California Constitution is abundantly clear that the governor cannot make law himself, because only the Legislature can.

But where has the Legislature been during Newsom’s lockdowns? Silent. Where is Assembly Speaker Anthony Rendon? Where is Senate Pres. pro Tem Toni Atkins? Why have they allowed Gov. Newsom to illegally issue legislative executive orders.

Kiley and Gallagher sued to stop California Governor Gavin Newsom’s “one man rule,” as California Globe has reported.

The Assemblymen argued that California’s Constitution has an explicit separation-of-powers provision, which Gov. Newsom has violated. “A California Governor is constitutionally forbidden from doing the very thing Gov. Newsom has done here: exercise legislative powers,” they say.

The Globe talked with Assemblyman Kiley Sunday about their latest filing in appeals court.

He explained that following their legal win in Sutter County Superior Court, Gov. Newsom and his legal team appealed Kiley and Gallagher’s trial court victory. This is what they write in their return response:

“This case concerns a limited point of law: whether the California Constitution countenances a dictatorship. Gavin Newsom is no Caesar, but his legal theory in this case and ruling philosophy this year are that of dictator legibus faciendis. The Executive can make laws at will, and the participation of the Legislature is at his discretion.”

They say in their response:

What is at issue is whether, in addition to this duly delegated authority, the Governor may lay claim to a form of “police power” that includes acts of purely legislative creation. Such power, if legitimized by this Court, would admit of no practical limitation. 

“As much devastation as Newsom has caused, swinging a wrecking ball up and down our state, what is even more dangerous is the precedent he’s trying to set. As we tell the Court:”

“Given the modern multiplication of ‘emergencies’ and their cascading effects across the landscape of California life, a mandate for executive lawmaking would confer unbridled control over the economic and social character of the state. It would be a reversion to the Roman model, destroying the separation of powers as we know it.”

Assemblyman Kiley said Newsom now has 10 days to respond before he and Assemblyman Gallagher face off for oral argument. And he said the Court’s decision could be the first ever precedent-setting decision on unconstitutional emergency orders, binding every California Superior Court. “That’s why Newsom may have badly blundered by choosing to appeal his loss,” he wrote. “He’s taken a significant risk, making this a matter of even greater consequence.”

“If our liberties are a function of ICU capacity, all a would-be strongman needs to do is close a few hospitals and he can rule with an iron fist. The better approach, of course, is to expand capacity if it’s needed.”

“The fact is we have a Governor who’s lost all credibility with the public,” Kiley said. That’s all the more reason the Legislature needs to start doing its job and restoring some sanity. Tomorrow, the new Legislature is sworn in and I’ll have some things to say about its disgraceful surrender to the Newsom autocracy.”

This is particularly poignant as the new Legislature is about to meet tomorrow, in different parts of downtown Sacramento, and without press allowed.

And where are other lawmakers? All other lawmakers – city council members, county supervisors, throughout the state? Why aren’t other elected leaders challenging the governor’s illegal orders? Why aren’t they challenging the orders from their own County Public Health officers?

In the city of Sacramento where I live, Mayor Darrell Steinberg is Missing In Action, allowing this ruthless takeover of the city’s businesses, and the bullying of its people, while he receives a full paycheck, paid for by the people.

The Sacramento County Supervisors are not only silent on the governor’s orders killing county businesses and bullying its people, the Supervisors are considering an ordinance to impose penalties and fines on people and businesses which do not fully comply with COVID Public Health Orders. Who is really running the County?

As Assemblyman Gallagher said in the October trial, there is a very clear distinction in the California Governor’s emergency powers as it pertains to legislation: he cannot create legislation or new laws, but the emergency powers allow the governor to remove legislation that is a roadblock to making decisions during the emergency. He can suspend any regulatory statute if it is getting in the way of facilitating emergency procedures.

What Gov. Newsom is doing, and the executive orders he has issued, is government tyranny. And Assemblymen Kiley and Gallagher are the only line of defense right now, fighting for the rights of the people of California… two guys in the state Legislature going it alone.

But the State Constitution is on their side.

Read Assemblymen Kiley’s and Gallagher’s 13,986-word Opposition to Gov. Newsom’s appeal of their trial victory here.

Read Assemblyman Kiley’s blog here.