COVID Revealed America To Be a Nation of Rulers, Not of Laws

Frank Zappa, the musician and satirist who passed away in 2009 said “The United States of America is a nation that has laws which are badly written and not enforced.” As I write about sausage making in state legislatures and city councils, I think back to that comment. Not to mention, California has 518 state agencies, boards and commissions.

The system of checks, checks, more checks, more checks, additional checks, impact reports and legal challenges frustrates those who wish to see “something happen.” Americans spent $14 billion on the 2020 election cycle to influence political outcomes—and that was just for the presidential and congressional races.

A modest bill was introduced by me to lower the ridiculously burdensome licensing requirements for hairdressers. It was defeated by the Assembly after months of deliberation and hearings. That explains the public’s desire to cut through the red tape and, as Arnold Schwarzenegger once promised, “blow up the boxes” of government.

Yet after COVID-19, it’s obvious our democratic system of lawmaking is, as Winston Churchill put it, “the worst form of government, except for all the others.” Given the choice between a system resembling a Rube Goldberg cartoon (with his bizarre and overly complex contraptions designed to complete simple tasks) and one that’s streamlined and efficient, I’ll take Goldberg’s vision any day.

As we saw throughout the country but in California in particular, governors were happy to dispense with the usual checks and balances and impose rules by executive order and fiat. Some initial rules were defensible during a public-health crisis, but it wasn’t long before elected officials operated like czars—imposing illogical and contradictory restrictions that made no rhyme or reason.

They kept moving the goalposts. They kept moving the goalposts. One day counties were placed under lockdown because of such and such infections rates. But standards soon changed. Governor. Gavin Newsom published a re-opening plan based upon COVID cases for 100,000 residents in September 2020. However, he refused to permit counties who met the standards to change their rules.

“A week after announcing the new blueprint, Newsom announced that the state would actually adjust those raw numbers using an algorithm based on testing rates,” according to an NPR report. Each county has a case rate that is adjusted based on their test rates. Californians had the sneaking suspicion that they were simply subject to the will of the King.

Although I considered the pandemic serious, it soon became clear that the rules set by the governor had little to do with the prevention of the spread. Governors (and not just Newsom) and federal regulators followed the Rahm Emanuel school of thought (“Never allow a good crisis to go to waste”)—and used the pandemic to impose policies they always supported but could never pass via the usual channels.

“Newsom has used his executive authority to shut down businesses, move local elections to vote-by-mail, accelerate spending on homeless shelters, alter court proceedings and provide benefits for essential workers,” according to an April 2020 Politico report appropriately headlined, “Newsom executive orders test constitutional bounds—and legislative goodwill.”

The previous month, Assemblyman Kevin Kiley (R–Rocklin) published a 138-page document detailing the 400 laws the governor had unilaterally changed following his State of Emergency declaration. “Our founders had good reasons for rejecting autocratic models of government in favor of separation of powers, checks and balances, and the rule of law—all of which Gavin Newsom has discarded,” Kiley wrote.

Kiley and Assemblyman James Gallagher, R-Yuba City, challenged this in court, arguing the 1970 California Emergency Services Act does not give the governor authority to “legislate by unilaterally amending existing statutory law.” The specific issue centered on the governor’s decision to send vote-by-mail ballots to all of the state’s voters—a good idea, in my view, but one that should have taken place by normal legislative action.

The Sutter County court sided with the Assembly members, although the decision didn’t affect the election because the Legislature approved vote-by-mail after Newsom’s order. It was clear that these executive actions are not always appropriate. Newsom wanted to make the law with just a single stroke.

An appeals court sided with the governor and found the emergency act gave him vast authority—including the “police power” to create new law. California Supreme Court allowed the appeals court ruling to stand. This means that, in any emergency declared by the governor, he can act as he pleases without having to check or balance other authorities.

Last month, Newsom mercifully lifted the vast majority of edicts and orders—but the precedent has been set for future emergencies. The executive’s power has no limits. Although life is back to normal now after 2 years of long, I may never complain again about the convoluted democratic process.

This column appeared in The Orange County Register for the first time.