Sometimes the people get what they want from unrestrained executive power.
For a combined 16 years as governor, Jerry Brown spurned capital punishment, and we’re going on eight years of Gov. Gavin Newsom doing the same.
Over those 24 years for better or for worse, California voters have married two irreconcilable ideas: They want to execute murderers, but they want a governor who won’t execute anyone.
For decades, the voters have rejected multiple opportunities to abolish the death penalty. And for decades, the voters endorsed governors who opposed capital punishment.
That’s some cognitive dissonance, but California’s voters seem fine with it.
This fits with a wider pattern of voters saying they want one thing and doing another. Ask a voter “Would you vote for a crook?” and the likely answer is “no.”
But of the many monikers that fit this governor, one might well be lawbreaker.
As mayor, his order to issue marriage licenses to same-sex couples was quashed by the California Supreme Court. As governor, his order barring churches from services during the pandemic was overruled by the U.S. Supreme Court. And soon after taking office on 2019, he ordered executions halted — even though Prop. 66, the initiative that directed the state to expedite executions, was already in the books.
Yet the Newsom ticket has never lost.
Wide discretion
The through-line here is voter choices: California’s voters hold ultimate power on this and every other public policy question.
Electing an executive officer gives them discretion in how the law should be executed.
So yes: The voters expect a governor to enforce the law.
But also yes: The will of the voters is entrusted to the governor to exercise clemency.
In that sense, you get what you pay for at the ballot box because you’re trusting this one person to figure it out and do the right thing on the hard calls.
When running for governor, Newsom said he was “crystal clear” about his strong moral opposition to capital punishment. He got reelected with his moratorium in place; he even beat a recall.
No one should be confused about his stance on capital punishment. If the people wanted something different, they wouldn’t have voted him in and could have voted him out, or recalled or impeached him.
Some argue that Californians should be outraged by the governor’s abuses.
That argument cuts both ways: Gov. Newsom wrongly seized power in one context (capital punishment), and wrongly failed to seize power in another (the Paramount merger).
This is the dilemma that unfettered executive power presents: Executive officials often don’t use their power the way you want them to, and you’re left to complain about it.
Being state constitutional law nerds, we have to point out that California has a divided executive branch.
In that structure, the nine state constitutional executive officers are all elected separately — that’s a key distinction from the federal Constitution’s provision for the president nominating nearly all executive cabinet members.
In California’s structure, the executive officers all have discretion to act in their independent constitutional fiefs.
But some argue that the governor can countermand their decisions and direct that discretion to be exercised in a certain way.
Unitary executive?
This argument relies on state constitutional provisions that give California’s governor the state’s supreme executive power and supervisory authority over the state executive branch.
That supports a view that California’s constitutional structure intends a unitary executive, like the one the U.S. Supreme Court thinks the federal government has.
The unitary executive view holds that since the Constitution (state or federal) vests the supreme executive power in one person (governor or president), that person has ultimate authority over everything and everyone in the executive branch. So in theory, if California’s governor wants someone prosecuted or sued, a criminal investigation stopped or a civil lawsuit settled, he only needs to call the attorney general and say so.
That’s what happened in Deukmejian v. Brown, when Gov. Jerry Brown wanted Attorney General George Deukmejian to drop a lawsuit. When Deukmejian refused, the California Supreme Court backed Brown.
But most public officials don’t love provoking constitutional crises, so in general that’s not how they do business in Sacramento.
No doubt there are phone calls going on behind the public statements. That’s what we should want: a collaborative executive branch, not one that fights in public and slugs it out in court.
And whether or not you buy the idea of a unitary California executive, only one person signs death warrants in this state. No court will order a governor to make that awful decision one way or the other.
We have argued that the governor could commute all final death sentences to life without parole for those with only one felony conviction, and that he could ask the California Supreme Court to approve commutation for the others.
But we don’t get to make that call.
The takeaway here is that governors are vested by law with a certain amount of discretion in how they do the job.
California’s voters are well-armed by law with their own choices at the ballot box and remedies against malfeasance in office.
If the voters get what they wished for and do nothing about it, then the people have spoken — whatever the written law may say.
To paraphrase Joseph de Maistre, every people gets the government it deserves, and all law is useless if the people are not worthy of it.
See you on Nov. 3.
David A. Carrillo is executive director of Berkeley Law’s California Constitution Center. Brandon V. Stracener is a senior research fellow at the same institution.