California COVID-19 mask order tests Newsom’s power limits

Governor Gavin Newsom’s June 18 order requiring all Californians to wear face masks was good news for those in the state concerned about the recent surge in COVID-19 cases. Nevada City Mayor Reinette Senum greeted the mandate with a message of challenge.

“Our governor does NOT have that unilateral power to make such orders,” Senum said in a Facebook post, joining sheriffs in Orange, Riverside, Sacramento and Fresno counties who have said they will refuse to enforce the Newsom decree. .

“What you should have done is do the right thing: go through the legislative process,” Senum said. “There was no public discussion, there was no space for public discourse.”

Since shortly after the outbreak began, Newsom has faced criticism from some for its extensive use of executive authority during the COVID-19 pandemic. He has been riddled with legal challenges on a variety of pandemic-related issues, including banning in-person religious services and declaring armories as essential businesses, with a number of cases still pending.

But the Newsom administration directive directing all Californians to cover their faces while in public, with limited exceptions, appears to be on a solid legal basis, according to some state constitutional experts.

The governor has widespread power to respond during a state of emergency, such as a pandemic, as does state Public Health Officer Sonia Angell, said Stephen M. Duvernay, principal investigator for the California Constitution Center at Berkeley Law.

After consulting with the state’s top public health officials and senior advisers in his administration, Newsom approved his recommendations for the state Department of Public Health to implement the mask mandate. Newsom’s order to stay at home, signed on March 19, requires that “all Californians pay attention to state public health guidelines from the Department of Public Health.”

“The Emergency Services Act authorizes a governor to assign the tasks of the Department of Public Health related to mitigating the effects of an emergency such as the current pandemic,” said Duvernay. “And DPH has independent legal authority to take the necessary steps to prevent the spread of disease.”

To combat a contagious, infectious, or contagious disease, Angell can “take the necessary steps to determine the nature of the disease and prevent its spread,” according to the state’s health and safety code.

“The Department of Public Health appears to have sufficient authority to order the public to wear masks to prevent the spread of the pandemic,” said former state appeals court judge Daniel M. Kolkey, who served as secretary of legal affairs. Republican Governor Pete Wilson. and later as an adviser to Governor Arnold Schwarzenegger.

Under California law, orders from the state public health officer can be carried out by county sheriffs and other local police agencies, and individuals who do not comply can be charged with a misdemeanor.

Newsom has repeatedly said he hopes to use the power of persuasion and education to get Californians to heed the order to wear masks and abide by other state-mandated coronavirus-related restrictions, but promised to take action if necessary. .

Newsom did exactly that on Sunday, when it ordered bars, breweries and nightclubs to immediately close in seven California counties due to an alarming increase in the spread of the coronavirus. The Newsom administration also recommended that eight other counties take steps on their own to close such businesses.

“Our approach at the state level must be guided first by law enforcement at the local level, but we have made it clear … that we have tools at the state level,” Newsom said.

Opposition to the mask order continues to stir. Members of the Freedom Angels group, anti-vaccine activists who protested the governor’s coronavirus actions, accused Newsom of abusing his power.

“Welcome to Prison Planet,” the group posted on Facebook.

San Francisco attorney Harmeet Dhillon hopes a judge will ultimately decide whether Newsom’s mask order is appropriate. Dhillon has filed more than a dozen lawsuits on behalf of individual clients and his nonprofit organization, the Center for American Liberty, challenging the governor’s executive actions during the COVID-19 pandemic.

He criticized Newsom’s order of masks, which includes the requirement that Californians wear facial covers outdoors if they cannot socially distance themselves from others. That’s a government overreach, he argued, since there is insufficient evidence to show that the virus is easily transmitted outdoors. Dhillon said he has asked both the state and counties for the scientific basis for his mask requests and that he has not received an adequate response.

“Of course, the governor has powers,” said Dhillon, who represents California on the Republican National Committee. “The problem is orders that are too broad, that are vague, that select winners and losers. What the governor did from the first day.

Kolkey agrees that the legality of some of Newsom’s executive actions during the pandemic, which he issued under his expanded powers during the state of emergency, remains unclear.

That includes Newsom’s executive order to expand the rights of workers classified as “essential” to file workers’ compensation claims, Kolkey said. Newsom also signed an executive order requiring major food companies to provide two weeks of supplemental paid sick leave for full-time workers who hire or are exposed to COVID-19.

Kolkey said he believes those orders amounted to creating new laws, which are exclusively within the purview of the Legislature, and that the California Constitution expressly prohibits people in one branch of government from exercising the powers of the other two branches.

That is the case even though the Legislature has passed laws that give the governor enormous power in times of emergency, including the right to suspend statutes and regulations, the authority to exercise the police power vested in the state, and the right to issue and rescind orders and regulations to carry out these powers.

The Legislature “cannot give up its power to legislate during an emergency and transfer it to the governor,” Kolkey said.

The Newsom administration said that, under the California Emergency Services Act, the governor has substantial authority during a state of emergency, including, the legislation states, “full authority over all state government agencies and the law to exercise within the designated area all police officers vested in the state by the Constitution and laws of the state of California. “

“Several courts that considered the issue, including California state courts, California federal courts and the United States Supreme Court, considering an executive order issued by Governor Newsom, have confirmed the Governor’s broad authority to take the action necessary to protect public health during the pandemic, Kate Folmar, a spokeswoman for the state Health and Human Services Agency, said in an email.

Until now, the courts have been somewhat deferential to the governor’s executive actions during the public health crisis.

In late May, the Ninth Circuit Court of Appeals upheld Newsom’s ban on in-person religious services as part of its order to stay home. Since then, the Newsom administration has allowed church services to resume in most counties as long as they comply with state-mandated guarantees.

“We are dealing here with a highly contagious and often fatal disease for which there is currently no known cure. In the words of Judge Robert Jackson, if a ‘[c]While it does not moderate its doctrinal logic with a little practical wisdom, it will turn the constitutional Bill of Rights into a suicide pact, ‘”wrote the majority.

However, a Sutter County Superior Court judge earlier this month blocked Newsom’s executive order to impose new electoral rules in counties that want to limit in-person voting in November to slow the spread of the virus.

Judge Perry Parker called the order “an inadmissible use of the legislative powers in violation of the California Constitution and the laws of the state of California.”

Subsequently, an appeals court removed Parker’s restraining order. Meanwhile, the Legislature will take action on a bill that changes electoral rules for this fall.

Times writer Taryn Luna contributed to this report.

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