By Jun Nam, CLS ’20
California Governor Gavin Newsom recently signed an executive order that indefinitely imposed a moratorium on the state’s death penalty.[1] For those familiar with Governor Newsom’s politics, this recent news might come as no surprise. As mayor of San Francisco, then-Mayor Newsom was an early champion of progressive causes such as same-sex marriage and the legalization of marijuana.[2] With this latest action, Governor Newsom’s executive order granted reprieve to the 737 inmates currently on death row, withdrew the state’s lethal injection protocol, and closed the death chamber at San Quentin State Prison.[3] To be sure, this was a significant move, and a victory to be celebrated for those who disagree with the death penalty. But Governor Newsom’s action came in the form of an executive order, which does not have the permanence of duly enacted law. Executive orders are a useful tool that executives in recent years have often resorted to when struggling to enact policy through the legislature. Governor Newsom’s actions reflect in part this broader trend in politics of unilateral executive action that is not backed by the force of the legislative process.
Both Presidents Obama and Trump have used executive orders to carry out their respective agendas. One of its most significant uses during the Obama presidency was the creation of the Deferred Action for Childhood Arrivals program—or DACA.[4] Faced with a resistant Congress, President Obama acted unilaterally in creating DACA, which granted temporary reprieve to undocumented immigrants who were illegally brought to the United States as children, so long as they met certain conditions.[5] As for President Trump, he has used his executive power most notably to implement the “Travel Ban,” and also to affect other policies such as environmental regulations,[6]and recently, to ensure free speech on college campuses.[7]
While executive orders carry the weight and force of law in their implementation, they do not enjoy the permanence of a duly passed law and are easily reversible by a subsequent executive order. DACA serves as a case in point. In signing DACA, President Obama himself acknowledged that this was an “imperfect substitute for legislation,” explicitly stating that it was “not a permanent fix.”[8] President Trump proved these statements to be true when he announced in 2017 that he would end DACA,[9]only to be prevented from doing so by the courts. The issue there was not whether President Trump had the power as the executive to reverse a prior executive order, but rather whether there was adequate justification for such reversal.[10] The former was not in doubt.
Governor Newsom’s executive order is not immune from these same drawbacks. While the governor may not face reversals of his executive order any time soon given that he assumed office only months ago, the law itself remains the same: the death penalty is legal in California. Local prosecutors may still pursue capital punishment if they believe it is warranted.[11] For a more permanent solution, Governor Newsom must act through the legislature.[12] But this is not easy—even in a staunchly blue state like California. In as recent as 2016, California voters chose to retain the death penalty, and further, voted to expedite the process for executions. Unless California citizens have changed their mind, this latest action remains an imperfect and impermanent fix.
[1]Tim Arango, California Death Penalty Suspended; 737 Inmates Get Stay of Execution,N.Y. Times(Mar. 12, 2019), https://www.nytimes.com/2019/03/12/us/california-death-penalty.html.
[2]Carla Marinucci, Newsom Takes His Case Against the Death Penalty to National Stage, Politico(Mar. 15, 2019), https://www.politico.com/states/california/story/2019/03/14/newsom-takes-his-case-against-death-penalty-to-national-stage-914806.
[3]Arango, supranote 1.
[4]Richard Gonzales, 5 Questions About DACA Answered, National Public Radio (N.P.R.)(Sept. 5, 2017), https://www.npr.org/2017/09/05/548754723/5-things-you-should-know-about-daca.
[5]Scott Horsley, Obama Calls Trump’s Reversal on DREAMers ‘Self-Defeating,’ ‘Cruel’, N.P.R.(Sept. 5, 2017), https://www.npr.org/2017/09/05/548708941/obama-calls-trumps-reversal-on-dreamers-self-defeating-cruel.
[6]SeeAidan Quigley, The Agenda: All of Trump’s Major Executive Actions So Far, Politico (Mar. 8, 2017), https://www.politico.com/agenda/story/2017/01/all-trump-executive-actions-000288.
[7]SeeSusan Svrluga, Trump Signs Executive Order on Free Speech on College Campuses, Washington Post(Mar. 21, 2019), https://www.washingtonpost.com/education/2019/03/21/trump-expected-sign-executive-order-free-speech/?utm_term=.99be4eaee75e.
[8]Horsley, supranote 5.
[9]SeeMichael D. Shear & Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, N.Y. Times(Sept. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.
[10]See Adam Liptak & Michael D. Shear, Supreme Court Turns Down Trump’s Appeal in ‘Dreamers’ Case, N.Y. Times(Feb. 26, 2018), https://www.nytimes.com/2018/02/26/us/politics/supreme-court-trump-daca-dreamers.html.
[11]While prosecutors can still pursue the death penalty, Governor Newsom’s temporary stay remains in effect and would prevent the death penalty from actually being implemented. SeeThe Editorial Board, A Pause on the Nation’s Biggest Death Row, N.Y. Times(Mar. 13, 2019), https://www.nytimes.com/2019/03/13/opinion/california-death-penalty-gavin-newsom.html.
[12]Alternatively, in California, voters can also change or enact laws directly by proposing an initiative, collecting enough signatures to qualify for the ballot, and winning a majority of votes in an election.