Category: Opinion

Overview The Chino Valley Unified School District Board of Education recently adopted a policy requiring school officials to notify parents if a student requests to use a different name or pronoun than is on their birth certificate — drawing California into the national battle over transgender rights in education.[1] California Attorney General Rob Bonta sued the district, arguing that the policy violates California’s constitutional right to privacy.[2] He’s right. Transgender students meet the threshold requirements of a California constitutional privacy claim because they hold specific and legally protected privacy interests, a reasonable expectation of privacy in light of “widely accepted...

Overview The document below is the hypothetical text of a possible California constitutional amendment and potential proponent’s argument, as an academic example of the sort of action that California’s legislature could, in theory, take if it wished. California Constitution Center fellows developed this after a conversation with Lieutenant Governor Eleni Kounalakis as an academic thought problem in the hypothetical case of a U.S. Supreme Court decision that removed federal constitutional protection for abortion. No one knows for sure if or when that might happen, so this is only one possible academic approach to what is at present a purely hypothetical...

Overview On August 20, 2021, Alameda Superior Court Judge Frank Roesch struck down Proposition 22, which would have classified app-based drivers as independent contractors, not employees.[1] Defining those drivers as independent contractors is problematic for California in two ways. As independent contractors, app-based drivers often underpay their taxes and insurance, which creates knock-on effects for the state’s ability to accurately tax this economic sector and financially burdens the state when they fail to pay. And while this classification policy decision may benefit app-based companies in the short term, their unsustainable business models will eventually collapse. Regardless how Proposition 22 fares...

Overview California’s Emergency Services Act (ESA) contains a provision granting the governor authority to exercise all the police power vested in the state during emergencies.[1] This provision, which is restricted to unforeseen problems and may only be invoked where necessary to further the ESA’s purposes, has been used multiple times: in response to oil shortages in the 1970s, the Medfly infestation in the 1990s, and the 2020–21 wildfires. During the COVID-19 pandemic Governor Gavin Newsom used this power extensively. Although this was an appropriate response to the pandemic, it uncovered a latent defect in the ESA: the absence of mechanisms...

Our nation faces a problem: as civil discourse becomes more partisan and heated, with fewer spaces available for neutral debate and collaborative discussion, more people will become discouraged and react by turning away from civic engagement. That’s especially true for students, who often search in vain for meaningful ways to be effective change agents. Both adults and students can become disillusioned and cynical about the democratic process when opportunities for civic engagement and conversation are lacking. But it’s far worse when a student tunes out — that’s our future turning away. The solution is not less engagement, but more; not...

Overview California can and should adopt a parliamentary system. This article analyzes how a hypothetical initiative measure (Proposition X) that proposes converting the state government to a parliament would interact with the existing political structure and constitutional doctrine, and reaches two primary conclusions: a state parliamentary government would survive constitutional scrutiny, and it would provide overdue political reform to California. Proposition X would survive legal challenges, including the amendment–revision and separation of powers doctrines, and the federal constitution’s guarantee clause. And Proposition X would unlock the benefits of a parliamentary system: empowering minority parties and checking the governor’s power. Analysis...

In the wake of President Trump’s capture of the federal judiciary, and the prospect of an enduring 6–3 conservative majority at the U.S. Supreme Court, liberal voices have proposed several plans to radically revise our system of government. Among these ideas are abolishing the Electoral College, expanding the nation’s high court, and calling a convention to rewrite the federal constitution. All of those options are impractical or undesirable, and creative solutions like this are snark hunts that distract from winning elections. The political process, not judicial intervention, should be the primary means of enacting a policy agenda, because political policy-making...

Overview The COVID-19 pandemic has transformed nearly every aspect of life in California, including our criminal justice system.[1] It also may portend economic dire straits.[2] These circumstances will compel California to make difficult choices, including in the capital case arena — which has always been “the antithesis of efficient and effective use of government time and resources.”[3] The state Attorney General can mitigate some of these issues by using that office’s constitutional authority to exercise leadership in criminal justice reform. This can be done by acknowledging errors in capital and other criminal cases, arguing for changes in existing law where...

Overview During the 2008 financial crisis, President-elect Obama’s Chief of Staff, Rahm Emanuel, famously said, “You never want a serious crisis to go to waste.”[1] The present pandemic is no exception. Examples of political and economic opportunities abound: the debates over the appropriate legislative response to the pandemic,[2] schemes to defraud frightened consumers and merchants,[3] the emergence of a “coronavirus economy,”[4] and even the mad dashes to hoard ordinary goods like toilet paper,[5] groceries,[6] and personal protective equipment.[7] And given the human propensity to forget our vulnerabilities between crises, the more negative of these examples will likely repeat themselves. Yet...