After 7 1/2 years as governor, Gavin Newsom still does not understand the scope and limits of his gubernatorial powers.
On July 13, California Attorney General Rob Bonta sued to block Paramount Skydance’s acquisition of Warner Bros. Discovery. On August 1, The Wall Street Journal reported that Governor Newsom had expressed his view that blocking the deal would adversely impact employment in California and had encouraged the California Attorney General Bonta to reach a compromise out of court.
But according to the Journal, “Bonta has been adamant that he will fight the deal in court unless Paramount agrees to structural remedies,” and recently cancelled a meeting with Paramount scheduled for August 24 to discuss settlement.
But as governor, Newsom need not complain about the suit and act as an interested observer. Instead, he could have expressly directed the Attorney General not to bring the case, and subsequent to the suit, he could have directed him to settle it and specified the terms upon which settlement should be reached.
Article V of the California Constitution provides that “[t]he supreme executive power of this State is vested in the Governor,” and more specifically, it provides that “[s]ubject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State.” This means that the Governor could have directed the Attorney General not to bring suit or the terms for settling it.
This reading of the state Constitution is not simply supported by its plain language, but is confirmed by the California Supreme Court’s decision in People ex rel. Deukmejian v. Brown. In that case, the California Supreme Court explained that “if a conflict between the Governor and the Attorney General develops over the faithful execution of the laws of this state, the Governor retains the ‘supreme executive power’ to determine the public interest; the Attorney General may act only ‘subject to the powers’ of the Governor.” Thus, Governor Newsom could have directed the Attorney General not to bring suit or to limit the remedies sought in the suit.
But he didn’t. He preferred leaking his views instead of leading.
His misunderstanding of his powers is not a new problem either. The California Constitution also provides, “The Governor shall see that the law is faithfully executed.” But he has failed to comply with that obligation in connection with the enforcement of the death penalty.
Specifically, despite the fact that as recently as 2016, California voters rejected a ballot measure that would have repealed the death penalty, and instead approved Proposition 66, which retained the death penalty, Newsom issued an executive order within his first three months of taking office which has effectively become an eight-year “moratorium on the death penalty … in the form of a reprieve.”
A blanket moratorium on enforcing the death penalty on all criminal defendants, without regard to the strength of the evidence in any particular case or the trauma experienced by the victims, hardly satisfies the governor’s constitutional obligation to see that “the law is faithfully executed,” in this case, a death penalty law, enacted by the People through their initiative power, and upheld by the California Supreme Court.
Yes, the governor found a legal loophole since he has the authority to grant a reprieve under the California Constitution. But this is ordinarily done on an individual basis. Yet, in this case, Newsom issued a reprieve to “all people sentenced to death in California,” regardless of the horrendous circumstances of any particular murder, the lost lives of innocent victims, or the California Supreme Court’s affirmance of the death penalty verdict in those cases.
Moreover, as defined by the California Court of Appeal, a reprieve is “a temporary stay or deferment of execution of a sentence.” This “temporary” stay has now lasted over seven years and will likely be “temporary” for the duration of Newsom’s two terms. Moreover, Newsom’s subsequent dismantling of death row in 2023 has made this “temporary stay” of execution more permanent. Whatever he is doing, he is not faithfully executing the law following trials, appeals, and the state Supreme Court’s affirmance of the death penalty judgments.
Someone who aspires to be president, like Gavin Newsom, should be expected to understand both the scope and limits of his constitutional powers in governing this State. These two examples concerning the scope of his constitutional powers – one very recent and one early in his tenure as governor – raise serious questions whether he elevates popularity over constitutional governance. But as Winston Churchill once observed, “Cheap popularity can prove itself very dearly bought.”
Daniel M. Kolkey is an attorney, former judge, and former counsel to Gov. Pete Wilson. He serves on the board of the Pacific Research Institute.