During the pandemic, we received a very up close and personal education in the different types of law. We heard and read about mandates, executive orders and laws. Many of the people I have met with weren’t clear on the differences between them. This confusion is something I feel important to address, especially during this already trying time.
Generally, they are all the same thing and carry the same power of enforcement. The main difference between them lies in their origin.
In government, the legislative branch of government – Congress, state senates and assemblies – create and pass legislation, which upon signature by a governor become law. It’s generally a lengthy, deliberative process measured in months, even years. Think of laws passed that regulate educational or safety standards, criminal laws and courts, and taxes.
The executive branch of government – president, governor – creates and enacts mandates via executive orders and local government jurisdictions are responsible for enforcement. California governors have declared states of emergencies many times over the years, most often in response to a flood, wildfire, earthquake or some other natural disaster. The declaration immediately opens the door for the state to access a variety of federal assistance and funds.
The governor’s authority under emergency powers is broad and mandates are fast and easy to implement, which is why they can be a crucial tool in rapidly changing situations such as emergencies. However, speed is a double-edged sword; it may lead to costly, even fraudulent contracts and inconsistent policies, all of which we observed occurring during the pandemic.
Mandates also may be put in place by a government agency – often a state or local health agency or department of emergency services. Think of the mask mandates during the pandemic. These types of mandates generally need a reason for their introduction, such as a declaration by the governor of a health emergency or natural disaster, and upon the lifting of the emergency declaration the mandate is revoked.
Local health authorities’ powers during an emergency also are very broad; they can exceed the mandate or guidance measures established by the governor. Employers and businesses also have significant latitude to exceed mandates or guidance – they can’t do less, but they can do more. For example, businesses may require employees and patrons to continue masking or provide proof of vaccination or a recent negative test, weeks or months past the pandemic receding.
When a state of emergency is declared, a legislative body may opt to cede certain of its powers to the executive branch for a temporary period, generally to streamline decision-making and spending during a significant emergency.
In March 2020, the Legislature voted to suspend its legislative proceedings due to the pandemic state of emergency. In effect, Newsom was empowered to govern by decree. Between March 12, 2020 and early February 2022, he issued 87 executive orders. In comparison, he issued 17 executive orders total in 2019.
According to state law, the governor should proclaim the termination of the state of emergency at the earliest possible date that conditions warrant. If the governor doesn’t terminate the state of emergency, the Legislature may do so via a concurrent resolution declaring it ended.
Feeling Newsom had been hanging onto his pandemic emergency powers too long, Republicans authored Senate Concurrent Resolution 5 (SCR 5), directly calling to end the State of Emergency.
Regrettably, SCR 5 failed in committee on a 4-8 vote.