During this pandemic, Governor Gavin Newsom has issued more than thirty Executive Orders (EO) to temporarily address different aspects of state law. Pursuant to California Government Code Section 8558, the Governor can call a state of emergency when there is an “existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease, …earthquake, or other conditions, other than conditions resulting from a labor controversy or conditions causing a state of war emergency ….”
Once the state of emergency has been declared by the Governor, state law grants enormous power to the state’s chief executive. What exactly are the Governor’s powers during a state of emergency? We can look to the California Constitution and statutes to find some guidance, but maybe not find all of the answers, including how far the EOs can go.
Article V of the California Constitution deals with the executive branch of government – not only the Governor, but also other constitutional officers. Two provisions of Article V speak to the Governor’s powers:
Section 1 – The executive power of the state is vested in the Governor and he or she must see that the law is faithfully executed.
Section 7 – The Governor is the state militia’s commander in chief and he or she has the authority to use the militia to execute the laws.
The state constitution provides for three separate, but equal branches of government that ensures a system of checks and balances. As the head of the executive branch of state government, the Governor has the requisite powers to utilize the national guard in an emergency and to ensure that state laws are complied with. But the constitution does not speak directly to a state of emergency or executive orders.
In turning to the statutes, we need to look at the California Emergency Services Act, which is found in the Government Code. Title 2 of the Government Code deals with the Government of the State of California. Division 1, Chapter 7 sets forth the California Emergency Services Act, which is found in Sections 8550 – 8669.7. In addition, Article 3 of Chapter 7 provides for Powers of the Governor, which are contained in Sections 8565 – 8899.72.
Powers of the Governor
Among the relevant provisions of the state Government Code are the following:
8567. (a) The Governor may make, amend, and rescind orders and regulations necessary to carry out the provisions of this chapter. The orders and regulations shall have the force and effect of law. Due consideration shall be given to the plans of the federal government in preparing the orders and regulations. The Governor shall cause widespread publicity and notice to be given to all such orders and regulations, or amendments or rescissions thereof.
(b) Orders and regulations, or amendments or rescissions thereof, issued during a state of war emergency or state of emergency shall be in writing and shall take effect immediately upon their issuance. Whenever the state of war emergency or state of emergency has been terminated, the orders and regulations shall be of no further force or effect.
This is the general provision of state law providing for executive orders. It allows the Governor to add, amend or repeal EOs and regulations that are needed to carry out the CESA. They take effect immediately and remain in force until the state of emergency has been ended. The question posed by this code section is how broadly should this grant of authority be viewed? And, do other code sections of CESA limit this broad grant of authority?
8570. The Governor may, in accordance with the State Emergency Plan and programs for the mitigation of the effects of an emergency in this state:
(a) Ascertain the requirements of the state or its political subdivisions for food, clothing, and other necessities of life in the event of an emergency.
(b) Plan for, procure, and pre-position supplies, medicines, materials, and equipment.
(c) Use and employ any of the property, services, and resources of the state as necessary to carry out the purposes of this chapter.
(d) Provide for the approval of local emergency plans.
(e) Provide for mobile support units.
(f) Provide for use of public airports.
(g) Institute training programs and public information programs.
(h) Make surveys of the industries, resources, and facilities, both public and private, within the state, as are necessary to carry out the purposes of this chapter.
(i) Plan for the use of any private facilities, services, and property and, when necessary, and when in fact used, provide for payment for that use under the terms and conditions as may be agreed upon.
(j) Take all other preparatory steps, including the partial or full mobilization of emergency organizations in advance of an actual emergency; and order those test exercises needed to insure the furnishing of adequately trained and equipped personnel in time of need.
This section provides many of the specific actions that the Governor can take to mitigate the effects of a state of emergency. These actions must generally be in accord with the State Emergency Plan.
8571. During a state of war emergency or a state of emergency the Governor may suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency, including subdivision (d) of Section 1253 of the Unemployment Insurance Code, where the Governor determines and declares that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.
While the language of this code section is broad, this statute does not provide the Governor with the power to suspend all laws. And, the important word in this statute is “suspend,” which means the power relates to an existing statute, not imposition of a new obligation, for example, that would otherwise be subject to legislation and needing a bill for enactment.
Moreover, the statute provides that the Governor may only suspend a “regulatory statute” or a “statute prescribing the procedure for the conduct of state business”. While this code section does not define what is meant by a “regulatory statute,” it does not allow creation of new statutory obligations. A regulatory statute is generally one that regulates conduct. Because the code section allows only “suspension,” the EO authority relates to putting a temporary hold on a statute that regulates activity.
On the other hand, it does appear that the Governor has greater authority to suspend regulations related to the conduct of business by state agencies. Nonetheless, Section 8571 specifically requires the Governor to declare that strict compliance would “in any way prevent, hinder, or delay the mitigation of the effects of the emergency”. Does this clause relate to suspending a regulatory statute, a statute prescribing conduct of state agencies, or both?
Of course, the Governor does not have the authority to suspend the California Constitution. As such, any rights contained in the state (or federal) Constitution are still in force.
8572. In the exercise of the emergency powers hereby vested in him during a state of war emergency or state of emergency, the Governor is authorized to commandeer or utilize any private property or personnel deemed by him necessary in carrying out the responsibilities hereby vested in him as Chief Executive of the state and the state shall pay the reasonable value thereof. Notwithstanding the provisions of this section, the Governor is not authorized to commandeer any newspaper, newspaper wire service, or radio or television station, but may, during a state of war emergency or state of emergency, and if no other means of communication are available, utilize any news wire services, and the state shall pay the reasonable value of such use. In so utilizing any such facilities, the Governor shall interfere as little as possible with their use for the transmission of news.
When the Governor calls a state of emergency, this code section gives him or her the authority to commandeer or utilize any private property or personnel deemed by him or her to be necessary in carrying out the responsibilities. However, the state is liable for the reasonable value of what it uses.
States of Emergencies
In addition to the provisions set forth above, Government Code Title 2, Article 13 of Chapter 7 provides for States of Emergencies, contained in Sections 8625 – 8629.
8625. The Governor is hereby empowered to proclaim a state of emergency in an area affected or likely to be affected thereby when:
(a) He finds that circumstances described in subdivision (b) of Section 8558 exist; and either
(b) He is requested to do so (1) in the case of a city by the mayor or chief executive, (2) in the case of a county by the chairman of the board of supervisors or the county administrative officer; or
(c) He finds that local authority is inadequate to cope with the emergency.
This code section details the findings necessary to claim a state of emergency.
8626. Such proclamation shall be in writing and shall take effect immediately upon its issuance. As soon thereafter as possible such proclamation shall be filed in the office of the Secretary of State. The Governor shall cause widespread publicity and notice to be given such proclamation.
These provisions require EOs to be in writing and to be filed with the Secretary of State. They also take effect immediately and most be widely publicized.
8627. During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter. In exercise thereof, he shall promulgate, issue, and enforce such orders and regulations as he deems necessary, in accordance with the provisions of Section 8567.
As would be expected, this code section makes clear that the Governor has “complete authority” over state agencies and to utilize police powers in order to ensure that his EOs and regulations are carried out. One question that this code section raises is what is the meaning of the term “police power”? Broadly defined, police power is the capacity of the state to regulate behavior and enforce order within its jurisdiction for the betterment of the health, safety, and general welfare of their citizens. Does the exercise of police power allow the Governor to impose new burdens on businesses, for example, or to adopt EOs that do more than “suspend regulatory statutes”?
8627.5. (a) The Governor may make, amend, or rescind orders and regulations during a state of emergency that temporarily suspend any state, county, city, or special district statute, ordinance, regulation, or rule imposing nonsafety related restrictions on the delivery of food products, pharmaceuticals, and other emergency necessities distributed through retail or institutional channels, including, but not limited to, hospitals, jails, restaurants, and schools. The Governor shall cause widespread publicity and notice to be given to all of these orders and regulations, or amendments and rescissions thereof.
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first.
Under this section, the Governor can add, amend or repeal any EOs and regulations during a state of emergency in order to temporarily suspend any state or local statute, ordinance or regulation that imposes “non-safety related restrictions” on the delivery of specified items, such as goods or pharmaceutical products that are normally delivered through retail channels. Generally, these EOs and regulations cannot remain in effect for more than 60 days.
8628. During a state of emergency the Governor may direct all agencies of the state government to utilize and employ state personnel, equipment, and facilities for the performance of any and all activities designed to prevent or alleviate actual and threatened damage due to the emergency; and he may direct such agencies to provide supplemental services and equipment to political subdivisions to restore any services which must be restored in order to provide for the health and safety of the citizens of the affected area. Any agency so directed by the Governor may expend any of the moneys which have been appropriated to it in performing such activities, irrespective of the particular purpose for which the money was appropriated.
Under this provision of law, the Governor can exercise full direction over all state agencies and utilize all public employees and their equipment to perform any required duties that the Governor determines to exist due to the emergency. And, state personnel may be directed to provide services to local governments and use all of the funding allocated for their duties.
8629. The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the Governor or by concurrent resolution of the Legislature declaring it at an end.
As would be expected, when the state of emergency ends, so do the Governor’s powers under the CESA. This means that the EOs will no longer be in force or effect once the emergency is terminated. Of interest is that the end of the emergency occurs either by a gubernatorial proclamation or by a concurrent resolution passed by both houses of the Legislature.
To return to our original question, the Governor has authority to suspend regulations of state agencies with very little limitation. However, can EOs create “new law?”
In other words, it is clear that EOs can temporarily suspend obligations of state agencies. And, it is also clear that EOs can temporarily relieve the regulated community from certain statutes or regulations. What is not clear, however, is whether an EO can impose a new legal obligation. Or does such action actually require a statute, which can only be created by a bill that has made its way through the legislative process after adoption by the Legislature?
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