McGeorge Adjunct Professor Chris Micheli

Governor Gavin Newsom has issued more than thirty executive orders during the coronavirus pandemic to temporarily address different aspects of state law. But what are the limits on the Governor’s executive orders?

Pursuant to California Government Code Section 8558, the Governor can call a state of emergency when there’s an existence of conditions of disaster or of extreme peril to the safety of persons and property within the state. Once the state of emergency has been declared, state law grants enormous power to the Governor.

The state’s constitution gives the Governor the power to utilize the national guard during a state of emergency to ensure that state laws are complied with. The Governor is also provided with numerous powers in the California Emergency Services Act, CESA.

CESA provides:

  • The Governor can issue executive orders, as well as add, amend, or repeal executive orders.
  • That executive orders take place immediately and remain in effect until the end of the state of emergency.

The pressing question is how broad is the Governor’s authority? Do CESA and other code sections limit the governor’s authority?

Government Code Section 8571 does not provide the Governor with the power to suspend all laws. I believe that suspend is the important word here, which means that the power leads to an existing statute, not the imposition of a new obligation. In my mind, the statute does not allow the creation of new statutory obligations via executive order.

Under Government Code Section 8628, 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 during an emergency. State personnel may be directed to provide services to local governments.

A state of emergency is ended either by gubernatorial proclamation or by a concurrent resolution of passed by both houses of the Legislature.

You can find the full transcript of today’s podcast here.

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