Emperor Newsom’s New Clothes
Daniel Dew on the Naked Abuse of Governors’ Emergency Powers
“Every banana republic in the world has a bill of rights.” — Antonin Scalia
With no end to California’s lockdowns in sight, it’s becoming clear that our state’s Bill of Rights hasn’t stopped Governor Gavin Newsom from running roughshod over our constitutional framework. Governors and their bureaucrats have taken on an unprecedented number of legislative functions — not allowing a good crisis to go waste — and using the pandemic to justify unconstitutional lockdowns
It doesn’t matter how dangerous you think COVID is — state legislatures and courts have delayed too long in reasserting their constitutional roles. Where did Newsom get the authority to designate which businesses are essential and non-essential?
Daniel Dew, Legal Policy Director of the Pacific Legal Foundation, joins me to charge our officials to reclaim their responsibilities in overturning gubernatorial “emergency powers.” Read Daniel’s latest for The Hill and you will understand how the policies of last spring and summer have been turned into seemingly permanent new power — just as my book Essential Liberties predicted.
Daniel and I discuss PLF’s latest legal challenges to Newsom’s unlawful color-code shutdown scheme. It’s Code Red for our liberties when our leaders violate seperation of powers so blatantly.
Bob Zadek: Good morning, everyone — welcome to The Bob Zadek Show.
I didn’t realize that our country decided we have had enough of representative government, that the legislature was just a big waste of money. We have decided that we will do much better if we cede all legislative power to just one powerful, autocratic tin horn, if you will — the chief executive — and let him or her or it. At least that’s what it feels like.
For the past nine months, the smallest parts of our behavior have been governed and our liberty has been taken away, not by the legislature, but by our chief executive, our King for a day, except the day is now nine months and counting.
Did you ever wonder how we got here? Is this the system of government which our founders gave to us? What about our representatives? Are they representing us and protecting our liberties? Did we vote for something and not realize it? After nine months and counting we will take a giant step back and look at the environment we are now living in and ask ourselves, how did we get here?
Whenever we have these important questions, I always dust off my contacts list and go to one of the many organizations that care about these important issues. In this case, I’m happy to welcome the show. Daniel Dew. He is with the Pacific Legal Foundation, a very important very influential public service legal law firm which protects our rights. They legislate effectively and they have an almost unblemished record in the US Supreme Court protecting our property rights protecting our civil rights. Daniel directs legal policy at the Pacific Legal Foundation.
Prior to that he was with the Buckeye Institute in Ohio, a state-level organization that also protects property and civil rights against the power of the state. Daniel has spent almost his entire career protecting all of us and quite effectively of that. Daniel is on this show to help us understand the creation, scope, and limitation of emergency powers exercised by chief executives, whether they be governors, mayors, county executives, or the like. Daniel, welcome to the show this morning.
Daniel Dew: Thank you so much for having me. I really appreciate it.
Bob Zadek: We’re talking about emergency powers. We have a system given to us by the founders, where Americans at all levels of government elect representatives who represent us, in the legislature, which the founders believed to be the most important of the three branches of government. They enact legislation, and all power sits or starts in the legislature. If we don’t like the laws, we vote the legislators out. We express our dissatisfaction at the ballot box. Our government then has an executive branch and the purpose of the executive is to carry out the laws. In other words, he’s the manager. He makes sure that the laws are faithfully executed and enforced. Over the past nine months, all we have heard about is directives and edicts from chief executives, and little from the legislature.
Tell us about the legal structure – how did chief executives get the power they are exercising? What are the limitations, if any, on that power?
Daniel Dew: You’re absolutely right in your description of our system. It is what we learn about in elementary school social studies. The way that it’s come about is actually pretty fascinating. Going back to when states were formed and state constitutions created, the states were very skeptical of a powerful governor. Before the Revolutionary War, a lot of the abuses that the people in the colonies suffered were at the hands of these governors from England, and so they didn’t want to give a lot of power to them. That’s why the most of the power is spread out amongst people in the form of our legislators.
The framers actually said that the legislature is the most dangerous of any branch, because they have the power to make law. What has happened over the years, is that when an emergency happens — usually some form of some sort of natural disaster — state legislatures made emergency powers acts where governors were given extra authorities so that they could deal with things swiftly.
Now, some of them were written more judiciously than others. Some of them put time limits, for example, some of them didn’t. I mean, I think that California, Arizona, and others are incredibly broad, where they basically say that the governor has the police power of the state when an emergency is declared.
Emergency Powers: A Look at the Mechanics
Bob Zadek: The ceding of power under emergency conditions by the legislature to the executive was not done because the chief executive will use the governor as any smarter than the collective wisdom of the legislature. It was done for purely practical reasons. When everybody goes home, you have a night watchman just to be there to alert people if something is going wrong and needs attention.
The night watchman is only there till the daytime. The emergency powers are only there until practically the legislature can meet. That concept of temporary practicality, is how it started. Under most states statutes, who gets to decide if there is an emergency? Congress gets to approve the action of the president in a declaration of war or other emergency. So mechanically, if you could speak generally, who decides if in fact, an emergency exists?
Daniel Dew: That’s what makes the state the state issue so broad, is that in almost every case it is the governor who just unilaterally says that there is an emergency. In some instances, the legislature can come in and undo it by joint resolution or something like that. But the actual declaration is by the governors themselves.
Bob Zadek: In an article you recently wrote in the Hill, entitled, “Enough is Enough: It’s Past Time to Reign in Governor’s Emergency Powers.” I couldn’t agree more with that subtitle. You scared the heck out of me when you pointed out that since governors have the power to declare their own emergencies, and since the Democratic Party has gained increasing control in the last election, it wouldn’t surprise you if governors could get declare a state of emergency because of opioid addiction, or a state of emergency because of homelessness.
In LA, for example, it would be perfectly appropriate, by the way. Or because of racism. Just imagine a governor saying racism is so bad, it is an emergency and it requires emergency action. I can just imagine a legislature cowering in fear, saying, “Oh, my God, if we challenge the governor, we will be seen to be pro racist.” Tell us how real that concern is.
Daniel Dew: The first thing I’ll note is that those emergency declarations are not hypothetical. Those are actually things that we have researched, and we have seen Governors or mayors declare an emergency dealing with those things. For the opioid epidemic, at least seven states have declared an emergency.
Up to this point, the declaration of emergency has been to move some money around or so that they’re eligible for federal funds that are available when an emergency is declared. But the fear is more what we saw with the pandemic, which will embolden governors such that there is no push back. And what we’re really doing is we’re using emergency with seriousness.
I like your watchman analogy to start the show because it is for that emerging serious issue where property or life is on the line and quick action isn’t taken. All of those things are very serious issues. There are policies that can be done and put in place. But the question is, do we want to embolden governors to be able to act unilaterally in every area of policy and law that those serious issues touch? The opioid epidemic affects criminal justice, it affects Medicaid, it affects a lot of really heavy topics.
Bob Zadek: The night watchman is only there, because somebody has got to be on the job until the true organization holding the power can assemble and get in charge. So the night watchman is there to call out if he needs help and to hold the fort, if you will, until the powers that be can assemble and take control.
Essential Liberty: Lost without Representation
This is not simply myself and Daniel complaining about how the wrong body is exercising power. It’s not simply that. It’s the fact that once the governor has assumed the power under a state of emergency, which was the case in March, how has it been used? It has been used to deprive Americans of their protected rights. Give us examples of the core rights that citizens of a state have been deprived of. We went to war to protect these rights. We have been kind of sheepish and kind of passive in standing by for so long. This is not a call to arms. It’s a call to understand what’s going on. Help us understand how governors have taken away essential liberty from all of us under the guise of a temporary emergency.
Daniel Dew: The biggest number that I can point to is 316 million people since March were under stay at home orders from their government. The right to travel is a protected right. It is a right recognized by our constitution and by our supreme court. Businesses have shut down, some of them permanently, due to emergency orders. The way that we worship in our churches has changed. One of the things that we’ve seen is that your local large big box store has been treated better than your local church congregation. Every single person has been impacted by these Governor’s orders, and it’s really affected almost every single phase of our lives.
Bob Zadek: I spent the first part of our show complaining about the passivity of the legislature. I spend many shows complaining about legislatures not doing enough. They are not doing what they are hired to do. Legislators hide and let the governor’s get the flack, and they get reelected and free parking in the state house.This is a complaint about the legislature. Are these emergency power statutes open-ended? How usually how long does an executive power over an emergency last in the legislature? Does it really last for nine months unfettered?
Daniel Dew: That depends on the state. Some states, I would say a small minority of states actually, will say that there is a certain number of days that an emergency can last before it expires, or it has to be submitted to the legislature. That’s a small fraction. But I think that the majority were thinking about natural emergencies, they were thinking riots, they were thinking those kinds of things — things that are very short by their nature. That’s truly the definition of an emergency. So perhaps it was short sighted by those legislators, but most of them don’t have a set time limit when these orders have to expire.
Limits on Executive Power
Bob Zadek: We have been speaking about the executive and the legislative branches of our government, we have not yet addressed the role of the judiciary. Your organization, PLF, and many others have been challenging, specific and even more general exercises emergency powers. When you go into court, does the court have anything to say about this? Or can the governor do whatever the heck he wants when the emergency is declared? Is there any role for the judiciary? And if so, what are the outside limits on what the governor can do?
Daniel Dew: What courts have done and what courts should do, I think, are very, two very different questions. But there are a number of ways that you can bet that these orders can and have been challenged. For example, some states, like California have a separation of powers clause within its constitution that specifically says that it is the legislature’s duty to make law, that the governor executes the law and, and so forth. I think that that’s a valid way to challenge these things.
One of the things that Justice Scalia I used to always say is that “every banana republic has a bill of rights.” What he was trying to point out is that it’s actually the structure of the separation of powers, the independent branches, each performing their specific roles that is what really protects individual liberty. I think that this has been highlighted by what we’ve seen in the pandemic and the rights that we’ve seen being infringed. But there are other ways to challenge these things as well.
We have a client that had a nail salon and for some reason one of the governor’s orders allowed hair salons to open but not nail salons. We argued that there was no rational reason for them to exclude nail salons, while allowing hair salons to open if they adhere to the same standards and same protocols. So there are a number of ways to challenge these things. They have been challenged under the First Amendment where churches have been not allowed to, to meet. As we’re getting into nine months and counting, courts are becoming a little more skeptical.
At the very beginning, a lot of courts were just punting and saying, “This is an emergency, we don’t want to touch this.” There’s definitely a role for the courts, and they need to step up and evaluate these things and scrutinize them.
Bob Zadek: Help us just flesh out a tiny bit about how the court system goes about deciding if a chief executive has gone too far, even though there may be an emergency.
Daniel Dew: Typically, there are a few standards of scrutiny applied by the court to see whether the government can do what it says they can do. Most times, it’s just a rational basis. Is there any rational basis for the law? Is there any reason that the legislature could give for doing this? That is what is applied to most statutes, but when a constitutional right is implicated like free speech or the right to worship the way that you want or things like that, they have applied a higher level of scrutiny called strict scrutiny.
The test for that is that the government has to have a compelling governmental interest and the law has to be narrowly tailored, meaning it should address the problem in the most bare minimum necessary to accomplish the goal without unnecessarily infringing on somebody’s rights. In the context of the nail salon versus hair salon example that I gave earlier, if it’s truly necessary to protect people from these services, then what a strict scrutiny analysis would do is ask if there is any reason why a hair salon can open while the nail salon can’t.
Bob Zadek: Daniel, I’m going to segue into a word that I predict will find its way into high school civics in about in about three or four years, and that is the word essential. We have been hearing ad nauseum for nine months, that essential businesses get to remain open, and unessential businesses have to close. That word is in the news every single day. That word appears nowhere in any legislature — certainly not in a founding or important document. Tell us about how this word got to be so important.
Daniel Dew: You’re exactly right. It doesn’t appear anywhere. It is a word that sounds really important but nobody can define it, so it can be fluid. We would get up and turn on the news or read the news to see what our government would allow us to do that day. What are we allowed to do now? Essential can be fluid so powerful lobbies could get to the governor and could be included in essential workers while small businesses couldn’t.
Bob Zadek: It gave them political cover. Once they could put some kind of an object of gloss on their decisions. All these activities that are random, minor activities, are either essential, or unessential. It all depended on the governor. We had no check of the representatives.
“Please God, let my activity be essential.”
Nobody gave us a seat at the table. So the word “essential” became the most important word. As you said, they woke up in the morning and hoped and prayed that the right they wanted to exercise was deemed essential: “Please God, let my activity be essential.”
- The Mini-Administrative State with Glenn Roper, July 30, 2020
- Here comes “the spike…” with Jeff Singer, June 18, 2020
- Commonsense COVID Response with Jeff Hewitt
- Does the Constitution Still Matter? Evan Bernick from the IJ
- Local Leviathan: Clint Bolick on Grassroots Tyranny
- Force as Farce: Unmasking the COVID Hypocrites Jon Miltimore of FEE
- Big government can’t save us from coronavirus with Jeffrey Tucker, February 2020
- How to Stay Sane as a Libertarian on Lockdown, with Jacob Sullum, March 30, 2020
Legislative Reform Post Covid: A Possible Cause for Hope?
Bob Zadek: You mentioned checks and balances. The legislature exercised no check on executive power. Has the legislature exercised its representative duties and pulled power back from the executive? Am I correct that a legislature could do that if it chose to do so?
Daniel Dew: Yes, a legislature can choose to do that if they would like to do so. The good news is that there are state legislators across the country who have recognized that this is a problem. Legislative sessions across the country are starting now. About half have introduced legislation that would limit Governor’s emergency powers and would redistribute that and allow the legislature to provide a check on the governor’s emergency powers. The good news is that their state legislators recognize that that’s a problem.
But there are additional problems with that, because as you’re changing statutes, you’re changing the law. The normal course is that it goes through the House, and it goes through the Senate, and then it’s presented to the governor. Almost every governor, regardless of party, does not want to give up that additional power that they have for their own power. Michigan passed one that was vetoed by the governor. Unfortunately, I don’t believe that they have the supermajority required to overturn the veto.
“Almost every governor, regardless of party, does not want to give up their own power.”
We have hope for reform in Kentucky. The Kentucky legislature passed an emergency powers reform overwhelmingly, and it was just vetoed last week by their governor. But it’s expected that the Kentucky legislature is going to override that veto early to middle of next month. There are people who are really working on this. I work with state legislators to help them craft policies to restore the separation of powers and we’ve come up with some model policies to do so. So there is some hope.
Bob Zadek:When you were telling us about this movement of legislature’s starting to take back their appropriate powers. What you didn’t hear, but I did, is that around the country, there was a wave of applause and a sigh of relief. You didn’t hear it because you were speaking. But I did. And it’s great news.
Now, a political question, if you will, Daniel. How could any governor, which vetoes that legislation, justify vetoing that bill? How do they think they will get re-elected?
Daniel Dew: I always think of this interview that Governor Bashir in Kentucky gave when the bill was introduced that would limit his emergency powers. He talked about how if the people as a whole didn’t have the will to do the right thing, he needed to be there to help them and to enforce it. I think that’s the nice way of saying that that he thinks that the people of Kentucky are too stupid to do the right thing. He, being the superior intelligence is going to tell them what to do. That’s not what he said. But that’s how I interpreted it.
This is an explainer for big government overall. There are an elite few who think that they know what’s best for everyone so they’re going to dictate to everyone what they should be doing. People now understand the immense power that the government actually has.
“There are an elite few who think that they know what’s best for everyone so they’re going to dictate to everyone what they should be doing.”
Bob Zadek: I equate what we are talking about today, the exercise of emergency powers, and then the legislation that you’re about to explain to us, to what happened in the aftermath of the Kelo decision. My listeners will recall that decades ago, the Supreme Court, in a almost universally criticized decision allowed the state of Connecticut to use eminent domain to take away private property from one group of landowners for the sole purpose of giving it to another private property group, so they could build more desirable use of the property and raise taxes. That was so offensive that the Supreme Court ultimately apologized for his decision more or less.
That created such a backlash, that there were 45 states that enacted legislation to rein in its own power of eminent domain as a reaction. It sounds like this is what is happening. We experience governmental overreach — now it is the Governor’s — and it doesn’t feel very good. The reaction to that is to undo what we experienced. Help us understand the type of legislation that you are encouraging states to pass to reign in the governor’s emergency powers.
Daniel Dew: On your first point, I really hope that’s true. I think that there is stirring, the problem is the present clause where governors have the authority to veto these things. We shouldn’t be trusting the government to just do the right thing, we should put those structural safeguards in place. I do think that there is momentum to building to get something accomplished.
The model policy that we put forward, is that these emergency orders should last no more than 30 days without being approved by the state legislature. That is plenty of time. Even in part time legislatures, for the legislature to assemble, and to approve or disapprove of an emergency order or to come up with their own legislation. It also includes a piece that would allow legislators to meet virtually, so that if there is some sort of natural disaster that doesn’t allow them to meet together, or if it’s a pandemic, where we don’t want people gathered in closely together, they can meet virtually. It’s subject to these orders to strict scrutiny. But also, it provides for expedited judicial review.
These things move quickly, businesses closed quickly, people are discriminated against, and the very nature of it being an emergency requires swift action. This tells the courts that they have to look at these things quickly so that people get the relief that they need. It also has a mechanism that for part time legislature, it incentivizes the governor to bring the legislature back into session. So it takes the existing emergency powers that are there and just places these safeguards up so that the legislature and courts are restored to their proper government functions.
Time-Limitations on Emergency Powers
Bob Zadek: Some states have 30 day limitations on how long the governor can act on the alleged claimed emergency. Cuomo in New York and Newsome in California, and many others have simply extended it, unilaterally. Is that a workaround? Or does your proposed legislation deal with that issue as well?
Daniel Dew: That is a workaround we have actually seen in some of these states. Part of our 30-day limitation is that it prohibits a governor from issuing a substantially similar order afterwards, so that way they’re not on the 29th day rescinding their original order and creating a new one. This really narrows that opportunity for them to work around the reform.
Bob Zadek: In listing the reforms, you highlight the problems. It starts with the fact that we have essential liberty, liberty is not a throwaway. It’s not disposable. It is what the country is all about. It raises the protection of liberty to a higher standard. It says before you mess with my right to earn a living my right to speak, or my right to worship, there are burdens that you have to overcome. PLF has been very active in this.
“We have essential liberty. Liberty is not a throwaway. It’s not disposable. It is what the country is all about.”
Tell us about what PLF is doing with defining liberty and the program you are running.
Daniel Dew: Every Friday for this month, we’ve been doing a series called Battleground America where we’ve been looking at different issues, including this one, identity politics and other issues that are really at the forefront of politics and policy right now. We’ve been having these great speakers from governments and academics, lawyers who litigate in these areas. They’ve been incredibly useful. They’re about an hour long. For more information on those and to watch past events, you can go to PacificLegal.org/event.
Bob Zadek: It’s of course available to podcast. Check it out and thanks for listening.
Originally published at http://bobzadek.com on January 20, 2021.