An Illusory Nondelegation Doctrine: The Case of Ghost Golf
When the Covid-19 pandemic hit the U.S. in 2020, California Governor Gavin Newsom issued the “Blueprint,” a complex regulatory response which tightened and loosened restrictions on activities depending on the severity of the pandemic in each county. The Governor took these actions pursuant to the Emergency Services Act (ESA), which authorized him to assume “all police powers” during a state of emergency.
Ghost Golf is an indoor mini-golf course in Fresno, CA. As an indoor entertainment venue, Ghost Golf faced the tightest Blueprint restrictions and was forced to remain closed between March 2020 and April 2021. In October of 2020, the owners of Ghost Golf brought suit against Newsom, seeking declaratory and injunctive relief. The plaintiffs argued that Newsom lacked statutory authority to undertake these actions, maintaining that the ESA must be interpreted narrowly, or in the alternative, that a broad interpretation of the ESA violated California’s nondelegation doctrine.
On appeal, the 5th District concluded that a broad interpretation of the ESA was appropriate and addressed the nondelegation issue. The 5th District found that the ESA did not violate the nondelegation doctrine, as the statute contained adequate safeguards against the arbitrary exercise of power by the Governor. The court’s conclusion violates the California Constitution, California state precedent, and common sense. NCLA has submitted an amicus letter urging the Supreme Court of California to take this case and breathe new life into the nondelegation doctrine.
The California Constitution establishes a tri-partite system of government, each with distinct roles that cannot be mixed. The ESA violated this by delegating pure legislative power to the executive branch. The police power is an exemplary instance of legislative power, referring to the state legislature’s broad discretion to pass laws for the public health, safety, and morals. The 5th District acknowledged that the police power “is generally the power to legislate,” and that the ESA gave the Governor power to “amend and make laws.” Ghost Golf, Inc. v. Newsom, 102 Cal. App. 5th 88, 102 (2024), review filed (May 20, 2024). Despite this, it held that delegation of such power to the Governor was constitutional.
The court’s decision paid lip service to the need for clear standards to guide delegation, a hallmark of the federal and California state nondelegation doctrines, but ultimately it found that “of greater significance” were adequate safeguards that prevented the Governor from abusing his power to pass “quasi-legislative” orders. Id. at 105. Chiefly, these safeguards included a provision enabling the legislature to pass a concurrent resolution to revoke the Governor’s ability to unilaterally exercise police power.
By asserting the primacy of safeguards, the 5th District departed from the framework established by the state’s highest court in Gerawan Farming, Inc. v. Agric. Lab. Rels. Bd., 3 Cal. 5th 1118 (2017) which required rigorous analysis of both the statute’s standards and safeguards. The Court could not have been clearer: safeguards are necessary “[i]n addition to clear standards.” Id. at 1150. For the 5th District, however, an inquiry into whether the legislature had decided the “fundamental issue of policy” was of secondary importance. Ultimately, even a delegation of broad legislative power is legitimate as long as the statute contains “adequate safeguards.”
Yet, the concurrent resolution provision, which the 5th District viewed as “a very significant safeguard,” is replete with constitutional and practical issues. On the constitutional front, a concurrent resolution that revokes delegated powers is a legislative act, which the California Constitution requires to be enacted through bicameralism and presentment. The California Supreme Court has previously explained, “[a] statute declares law; if enacted by the Legislature it must be initiated by a bill, passed with certain formalities, and presented to the Governor for signature.” Am. Fed’n of Lab. v. Eu, 36 Cal. 3d 687, 708–09 (1984) (citing Cal. Const. Art. IV §§ 8, 10). California has “specific constitutional provisions [to] prevent a resolution from being treated as a law.” Id. Thus, the concurrent resolution provision circumvents bicameralism-and-presentment procedures.
More to it, the safeguards make little practical sense. Even if it is constitutional for the legislature to end the state of emergency by concurrent resolution, the ESA authorizes the Governor to re-declare that emergency unilaterally. Thus, this highly-praised safeguard would do little to restrain a rogue Governor’s exercise of power, only setting the rules for a game of chicken between the legislature and Governor regarding declarations of a state of emergency.
California’s courts have eroded the nondelegation doctrine to the point of nullity. In doing so, they have trampled on the separation of powers principle expressly written into the state Constitution. Permitting such sweeping delegations of legislative power threatens liberty, allowing “the most representative organ of government” to abdicate its decision-making authority on “controverted issues of policy” and place it in the hands of a single individual who may act unilaterally and without any meaningful check on his actions. Clean Air Constituency v. California State Air Res. Bd., 11 Cal. 3d 801, 817 (1974). NCLA urges the Supreme Court of California to remember its constitution and restore separation of powers in the state.
August 19, 2024