California's state government is generally organized into three coequal branches - the legislative, executive and judicial. The legislature has the power to make laws and the executive has the responsibility to execute those laws. The legislature may delegate to the executive branch the authority to adopt regulations that have the force of law. Under the separation of powers doctrine, one branch of government is prevented from exercising the constitutional power vested in another branch. Thus, the executive branch has no authority to make law in the form of regulations unless the legislature has bestowed that authority on the executive.
In enacting the Emergency Services Act, the legislature granted the Governor certain powers. As has been previously observed in this blog, the ESA empowers the Governor to suspend certain categories of state statutes and regulations. The authority to suspend the operation of a statute or regulation, however, is not the same as the authority to create a law.
The ESA does empower the Governor to make, amend, and rescind orders and regulations necessary to carry out the provisions of the ESA. Cal. Gov't Code § 8567. The ESA further provides that during a state of emergency, the Governor "shall promulgate, issue, and enforce such orders and regulations as he deems necessary, in accordance with the provisions of Section 8567". It is clear that the Governor's authority under these provisions is limited to carrying out the provisions of the ESA and not as a general grant of authority to make laws on any subject.
Last week, Superior Court Judge Perry Parker issued a temporary restraining order suspending the Governor's Executive Order N-67-20 (relating to the November 3, 2020 election) on the basis that it was "an impermissible use of legislative powers in violation of the California Constitution and the laws of the State of California". The Third District Court of Appeal later stayed the TRO (but not the proceedings). Newsom v. Superior Court, Ct. App. Case No. C092070.
The United States and California constitutions constrain the authority of both the legislature and the Governor. Thus, the legislature cannot empower the Governor to violate the U.S. Constitution. This is where the role of the judicial branch becomes crucial.
If the ESA imposes no restraints on the Governor's authority to make laws, it has the potential to become a modern day Lex Titia. That ancient law was enacted during another period of crisis (the assassination of Julius Caesar). It empowered three men (the triumviri) with the power to make and annul laws for the purpose rei publicae constituendae (restoring the republic). In fact, the Lex Titia marked the de jure end of the Roman republic and the beginning of imperial rule.