The Governor’s Powers Under the Emergency Services Act
The Emergency Services Act gives California’s governor broad
emergency authority. Typically, the state constitution requires policy
decisions (what we should do going forward) to be made through the deliberative
But in a crisis, that authority (what we should do right now) may be consolidated
and exercised by one executive. After declaring an emergency, a governor may disregard
statutory law to direct state resources in responding to the crisis. By
granting the governor these powers, the state legislature delegated its power
to fix public policy and deploy funds during emergencies. This raises some
separation of powers concerns that, while meritorious, have not proved so
severe that California risks dictatorship.
The Emergency Services Act grants broad powers
The Emergency Services Act establishes statewide emergency
standards in the event of natural, manmade, or state-of-war emergencies that
put in peril the life, property, and resources of California citizens.
A governor has authority to proclaim a “state of war emergency,” “state of
emergency,” or “local emergency.”
No preliminary findings are required — a governor need only decide that the
proclamation circumstances exist.
In an emergency, a governor may exercise California’s sovereign authority to
the fullest extent possible, consistent with individual rights and liberties.
The ESA grants the governor several powers, including the power to:
- Suspend any regulatory statute, statutes for state
business procedures, and any state agency edicts.
- Commandeer private property or personnel (except
- Make expenditures from any available fund.
The ESA makes it a crime to refuse or willfully neglect to
obey emergency orders or regulations.
And it insulates the state from liability for any claim based on the exercise,
performance, failure, or discretionary choice made under the act’s authority.
The separation of powers issues are resolvable
Emergencies obviously call for swift, centralized
decision-making. But the ESA says little to guide executive discretion in
declaring emergencies. The ESA is not by its terms limited to the classic
earthquake, fire, or invasion scenarios, raising concerns that the delegation
of legislative power is so great that it unconstitutionally changes the balance
of power. The risks are that a governor could in good faith declare an
emergency for a condition that unforeseeably extends far into the future, or
that a governor in bad faith conjures an emergency that necessarily will
continue indefinitely. Those concerns implicate the separation of powers
Unlike the federal charter, California’s constitution has an
express separation of powers provision. By its text, Article III, section 3
seems to require the three branches to be hermetically sealed from each other:
“The powers of state government are legislative, executive, and judicial.
Persons charged with the exercise of one power may not exercise either of the
others except as permitted by this Constitution.” But the California Supreme
Court has acknowledged that the three state government branches are
interdependent and may, to a degree, share their powers.
Because the state’s three branches share common boundaries, California’s
separation of powers doctrine seeks to maintain the sensitive balance between the
branches and assumes a certain degree of mutual oversight and influence.
The judicially enforced limit is this: a branch of government cannot assume the
core powers or functions of another branch.
Federal separation of powers doctrine is not binding on
California courts. Yet a key feature of federal separation of powers doctrine,
the Youngstown analysis, is a useful frame for evaluating the ESA.
In his Youngstownconcurrence, Justice Robert H. Jackson described a three-level vision of
executive power. In his view, the greatest level of executive power exists when
it acts with legislative authority because that scenario combines all the
executive’s constitutional powers with those of the legislative branch. The
executive has less power to act when the legislative branch has parallel authority—there,
the executive must have both constitutional authority and grounding in separation
of powers considerations. The executive has the least power when acting
contrary to a legislative enactment because that executive action relies on the
executive’s constitutional powers without the legislative branch’s powers over
the subject matter.
California’s governor holds the state’s “supreme executive
The state’s legislative power is vested in the legislature.
Absent constitutional justification, executive officers cannot exercise
And no express provision in the state constitution resembles the ESA’s grant of
legislative power: exclusive authority to appropriate funds, and unrestrained
power to waive statutory laws.
The ESA itself — a statutory act — cannot provide the necessary permission, so
there must be some other unexpressed or general constitutional justification
for a governor to exercise the ESA’s legislative powers.
The separation of powers doctrine provides that
justification, although it may seem counterintuitive. The ESA seems to
accomplish exactly what the separation of powers doctrine intends to prevent:
the combination in the hands of a single person or group of the basic or
fundamental powers of government.
Yet that is the doctrine a court would use to both justify the ESA and uphold
the legislature’s delegated powers if a governor refuses to surrender them. The
legislature has authority to terminate an emergency by concurrent resolution.
But assume that a hypothetical governor ignores the concurrent resolution and continues
to exercise ESA powers long after the emergency ended. The legislature could
pass an amended ESA, or void it, and even override a gubernatorial veto — but a
governor could then claim that the existing emergency powers confer authority
to ignore those things as part of the executive response to the ongoing
emergency. That debate would quickly land in the courts, which would then need
to resolve the separation of powers issue.
The ESA does not present the more typical separation of
powers problem where a branch over-regulates another branch or attempts to usurp
its powers. Instead, this is a delegation issue. By granting governors
emergency declaration power, the legislature has delegated some of its core
powers to the executive. In the Youngstown framework, a governor acting
under the ESA wields maximum constitutional powers: the supreme executive power
and some lawmaking authority. The question is whether a court would
conclude that the legislature ceded too much of its core appropriations and
There are two ways to handle the separation of powers
problem the ESA presents. One rationale relies on the fundamental judicial
power to resolve interbranch disputes. The judicial power includes policing the
branches to maintain separation of powers.
The California Constitution Center has argued that a material impairment occurs
only when one branch eliminates or controls the discretion of another branch in
exercising its core power.
This permits an emergency delegation of some legislative core powers to the
executive so long as the legislature maintains control of the discretion of the
other branch in exercising that power. In the emergency context, this means
that a court could uphold the temporary delegation of legislative power to the
executive because the grant is neither permanent nor irrevocable.
Indeed, the ESA itself provides a check against a governor’s
attempt to aggrandize itself by retaining emergency powers after a crisis ends:
The act requires the governor to end a state of emergency “at the earliest
possible date that conditions warrant,” and the legislature can terminate a
state of emergency by concurrent resolution.
If the legislature is concerned enough about an overlong emergency declaration
that it demands judicial intervention, it can terminate the state of emergency
and retrieve its powers. If the legislature can retrieve its powers,
temporarily ceded in an emergency, then its powers have not been lost. In our
hypothetical dispute above, a court could use this analysis to justify ruling
for the governor in the short term, or ruling for the legislature in the long
term — upholding the ESA in either scenario.
The other rationale is the delegation analysis, which asks whether
the legislature impermissibly delegated its core powers without providing an
adequate yardstick to guide executive action under the ESA.
The legislature may delegate some authority to the executive branch when it
provides “an adequate yardstick for the guidance for the administrative body
empowered to execute.”
The guidance is necessary: otherwise, the legislature could confer unrestricted
authority to make fundamental policy decisions, which would violate separation
of powers because generally the legislature cannot escape its policy-making responsibility
by delegating it to other branches.
The ESA’s sole guidance is in how it describes the grounds
for an emergency proclamation: a governor is empowered to proclaim a state of
emergency when the governor “finds that circumstances” amounting to a state of
emergency exist, and either a local authority requests the declaration or the
governor “finds that local authority is inadequate to cope with the emergency.”
The ESA defines a “state of emergency” as “the duly proclaimed existence of
conditions of disaster or of extreme peril to the safety of persons and
property within the state” caused by such conditions as fire, flood, storm, epidemic,
riot, drought and other calamities.
That definition is circular: the emergency proclamation power’s existence
depends on a governor’s proclamation that an emergency exists.
And as in our hypothetical above, the ESA assumes that a governor will act in
good faith in both declaring and ending an emergency.
Even that broad delegation, and its equally liberal
guidance, is permissible because the grant of legislative power is neither
complete nor permanent. Delegation is merely a particular variety of separation
of powers problem. The ultimate separation of powers limit is that one branch
cannot exercise the complete power of another branch.
Absent abuse, the ESA does not violate that principle because the legislature
still holds all its legislative power and, as discussed above, can retrieve the
limited amount temporarily granted to the governor.
Separation of powers is equally concerned with doctrinal
purity and practical reality. The doctrine is not intended to take away the
flexibility that the branches need to operate in an effective and efficient manner.
In an emergency, practical reality governs, and a court would be reluctant to restrict
that flexibility and disrupt the government’s good faith crisis response.
In contrast, in a bad faith or abuse of discretion scenario, a court likely
would enforce the inter-branch boundaries, uphold the legislature’s core powers,
and order them restored. Separation of powers is violated “only when the
actions of a branch of government defeat or materially impair the inherent
functions of another branch.”
The ESA could be used to defeat or materially impair the legislature’s core
powers, but it does not necessarily do so.
California is not likely to become a dictatorship. The emergency powers the ESA grants to governors to make solo policy decisions do implicate the separation of powers. In the short term those concerns may be allayed, and the delegation justified. In the long term, a court would act to preserve core executive and legislative functions. California benefits from its governor having all necessary powers to quash a crisis, and the state is designed to return to normal when the emergency ends.
Stephen M. Duvernay and Brandon V. Stracener are attorneys in private practice and senior research fellows at the California Constitution Center.
Valley Fire Prot. Dist. v. State of Cal. (2001) at 643 (essentials of
the legislative function include the determination and formulation of
Gov. Code § 8550.
Gov. Code § 8558 (definitions); Gov. Code § 8625 (proclamation guidelines).
Correctional Peace Officers Assn. v. Schwarzenegger (2008) at 820.
v. State of Cal. (1995) at 854. See Cal.
Correctional Peace Officers Assn., supra note 4, at 811,
describing the governor’s power to declare a state of emergency and the broad
powers that declaration confers to deal with such emergencies by, for example,
suspending any regulatory statute or the orders, rules, or regulations of any
state agency, commandeering or use any private property or personnel deemed
necessary to carry out his responsibilities, and spending from any fund legally
available to deal with actual or threatened conditions of a state of emergency.
Gov. Code § 8571.
Gov. Code § 8572.
Gov. Code § 8645. This overrides the legislature’s otherwise-exclusive appropriation
Valley Fire Prot. Dist., supra note 1, at 643 (core
functions of the legislative branch include passing laws, levying taxes, and
appropriating funds); St.
John’s Well Child & Family Center v. Schwarzenegger (2010) at 965; Super.
Ct. v. County of Mendocino (1996) at 53 (executive branch ordinarily “may
not disregard legislatively prescribed directives and limits pertaining to the
use of such funds”).
Gov. Code § 8655.
California decisions long have recognized that the separation of powers
doctrine contemplates that the three departments are in many respects mutually
dependent, and that the actions of one branch may significantly affect those of
another branch. Super.
Ct. v. County of Mendocino (1996), supra note 8, at 52.
Valley Fire Prot. Dist., supra note 1, at 641 (separation of
powers doctrine limits the authority of one of the three branches of government
to seize the core functions of another branch).
Const., art. V, § 1.
Const., art. IV, § 1.
of the powers granted the Governor by this chapter with respect to a state of
emergency shall terminate when the state of emergency has been terminated by
proclamation of the Governor or by concurrent resolution of the Legislature
declaring it at an end.” Gov. Code § 8629.
& Chou, California Constitutional Law: Separation of Powers (2011)
45 U.S.F. L.Rev. 655, 682.
Gov. Code § 8629.
Delegation typically concerns administrative agencies. The rule is that while
delegating some governmental authority to an administrative body is proper,
delegating absolute legislative discretion is not, so courts require that a
delegating statute establish “an ascertainable standard to guide the
administrative body.” State
Bd. of Dry Cleaners v. Thrift-D-Lux Cleaners (1953) at 448.
Code § 8625.
Gov. Code § 8558 subd. (b).
the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence,
autonomy but reciprocity.” Youngstown,
supra note 14, at 635 (conc. opn. of Jackson, J.).
See, e.g, Susman
v. City of Los Angeles (1969) at 818–19 (holding that when and under
what circumstances the National Guard should be called up to preserve the peace
is a discretionary gubernatorial decision and not one subject to judicial
inquiry or review).
re Rosenkrantz (2002) at 145 (separation of powers doctrine is violated
only when the actions of a branch of government defeat or materially impair the
inherent functions of another branch); see also Marine
Forests Society v. Cal. Coastal Com. (2005) at 15 (separations doctrine
violation occurs where “the statutory provisions as a whole, viewed from a
realistic and practical perspective, operate to defeat or materially impair the
executive branch’s exercise of its constitutional functions”).