Our High-Stakes Filing with the Court of Appeals
At 4:59 PM Friday, with 30 seconds and 14 words to spare, James and I filed our 13,986-word Opposition to Gov. Newsom’s appeal of our trial victory. You can read it here.
I’ll be honest, this was a frenzied effort given the insanely short amount of time. But it is by far our most comprehensive takedown of Newsom’s legal house of cards and the most high-stakes document yet filed against him in any court. It begins:
“This case concerns a limited point of law: whether the California Constitution countenances a dictatorship. Gavin Newsom is no Caesar, but his legal theory in this case and ruling philosophy this year are that of dictator legibus faciendis. The Executive can make laws at will, and the participation of the Legislature is at his discretion.”
As much devastation has Newsom has caused, swinging a wrecking ball up and down our state, what is even more dangerous is the precedent he’s trying to set. As we tell the Court:
Given the modern multiplication of ‘emergencies’ and their cascading effects across the landscape of California life, a mandate for executive lawmaking would confer unbridled control over the economic and social character of the state. It would be a reversion to the Roman model, destroying the separation of powers as we know it.”
Newsom now has 10 days to respond before we face off for oral argument. The Court will then publish what could be the first ever precedent-setting decision on unconstitutional emergency orders, binding every California Superior Court. That’s why Newsom may have badly blundered by choosing to appeal his loss. He’s taken a significant risk, making this a matter of even greater consequence.
But I know that at the moment, this is a small consolation as Newsom continues to see COVID as a nail to vainly pound with the hammer of lockdowns. In his latest maneuver, he’s gerrymandered the state into five super regions with a supposed Stay-at-Home Order triggered by ICU capacity.
All of a sudden, we have a new map, a new metric, and new restrictions for a virus whose very name, COVID-19, speaks to our universal familiarity with it.
Here’s what I find most chilling. If our liberties are really a function of ICU capacity, all a would-be strongman needs to do is close a few hospitals and he can rule with an iron fist. The better approach, of course, is to expand capacity if it’s needed, yet in many ways Newsom has done the opposite.
The fact is we have a Governor who has lost all credibility with the public. That’s all the more reason the Legislature needs to start doing its job and restoring some sanity. Tomorrow, the new Legislature is sworn in and I will have some things to say about its disgraceful surrender to the Newsom autocracy.
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