The California Senate has introduced and held hearings on Senate Bill 1368, a bill that would create limitations on gubernatorial powers during states of emergency.
SB 1368 specifically amends the California Emergency Services Act to require a state of emergency to terminate 45 days after the Governor’s proclamation, unless the Legislature extends it by a concurrent resolution.
Under SB 1368, a state of emergency can end in one of three ways. First, the Governor can proclaim the termination of the state of emergency. Second, a state of emergency will automatically end after 45 days unless extended by the Legislature via concurrent resolution. Third, a concurrent resolution by the Legislature can declare an ongoing state of emergency has reached its conclusion.
This bill ensures protection from gubernatorial overreach by specifically stating that all powers granted the to the Governor in the California Emergency Services Act with respect to a state of emergency shall be terminated with the conclusion of a state of emergency.
During the pandemic, many Americans saw their respective governors wield unprecedented power with seemingly unlimited emergency declarations. This overnight shift in governance, coupled with a plethora of governors who abused their pandemic emergency powers, has left several states reevaluating constitutional statutes pertaining to emergency provisions and powers granted to the governor during a state of emergency. With SB 1368, California is no exception.
This change to the current California Emergency Services Act is paramount to prohibit Gov. Gavin Newsom—and future governors—from excessively extending his state of emergency powers long past the point of necessity—as we saw happen time and time again. For example, Newsom has extended many portions of his original COVID-19 emergency proclamations through March 31, 2022.
Simply put, SB 1368 creates commonsense restrictions and limitations on gubernatorial powers. Furthermore, it reintegrates the legislature into the governing process during states of emergency. It aligns with many of the principles developed by the Heartland Institute during the pandemic, which legislators can reference upon any gubernatorial abuses of power.
Some of these ideas and principles include:
- The ability to immediately nullify an emergency proclamation via resolution.
- The creation of time limitations for an emergency order, renewable by the legislature.
- The ability to pass a resolution that requires the governor to call a special session to approve of an emergency proclamation if the legislature is out of session.
- Permitting an interim committee or group of legislative leaders to extend or reject emergency proclamations.
- The imposition of specific limits to executive authority during an emergency proclamation (i.e., restrict the governor from unilaterally closing businesses, closing houses of worship, or shutting down freedom of the press, and the right to bear arms).
There is a clear appetite among lawmakers and constituents to restrict gubernatorial overreach, especially after Gov. Newsom dictated policy like a king throughout the pandemic. Via this legislation, California lawmakers can catch up to their peers in other states who have already taken measures to rein in executive authority.
Co-equal governance, checks and balances, and the decentralization of power are bedrock principles of American democracy. Yet, these fundamental principles have been AWOL in California since the pandemic.
Fortunately, lawmakers in the Golden State are beginning to stand up to gubernatorial overreach by reasserting their rightful place as a much-needed check against the executive branch.
The following documents provide more information about executive authority in a state of emergency.
Testimony Before the Georgia House Judiciary Committee regarding legislative and executive authority in a state of emergency.
Cuomo has issued multiple statements in an attempt to quell the backlash and frustration of New Yorkers and lawmakers in Albany to no avail.
The Heartland Institute hosted a webinar on Aug. 27, 2020 for state legislators to discuss how they can rein in governors, who wield seemingly unlimited powers in the wake of COVID-19. For many months, Americans have been abhorred by out-of-control governors who have imposed draconian lockdowns, which have decimated small businesses and people’s livelihoods. For instance, Gov. Andrew Cuomo has been roundly criticized for his heavy-handed and ineffectual response to the coronavirus outbreak in New York, which has drawn substantial blowback. Cuomo has also attempted to coverup his disastrous policy of forcing elderly patients with COVID-19 to return to nursing homes, where they spread the deadly diseases like wildfire among New York’s most vulnerable. As the days grow shorter and the temperatures dip lower, now is the time to begin exploring oversight over dictatorial governors and restore power where it rightfully belongs: With we the people, not I the governor.
Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.
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