CSAC Bulletin Article

Supreme Court Next Stop for Executive Power Lawsuit

May 6, 2021

An appeals court this week found that Governor Newsom’s executive orders issued last year were an appropriate use of the Emergency Services Act and did not amount to an unconstitutional delegation of legislative power. The suit was filed by Assembly Members Kiley and Gallagher and had been successful at the trial court level. The Assembly Members have announced their intention to appeal the decision to the California Supreme Court.

In brief, the court’s decision found that the Emergency Services Act (ESA) grants the Governor broad powers, but that it does not amount to an unconstitutional delegation of legislative power because it is limited in important ways. Specifically, the ESA limits the Governor’s power to actions “that further a coordinated emergency response” only for as long as the emergency conditions exist, and the Legislature has the power to end the emergency.

CSAC filed an amicus brief in the case seeking clarity in the trial court’s order, which created uncertainty about the validity of Executive Orders, many of which were requested by counties and impacted county operations, such as allowing flexibility for Brown Act compliance. For all kinds of emergencies, such as wildfires, heat events, drought or a global pandemic, counties play critical roles in emergencies and need to have the confidence to respond quickly and address the multiple needs of their communities.


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