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The doctrine of separation of powers prohibits a governor from usurping the power of the legislature. The governor enforces legislation such as the Emergency Services Act. His power to issue an emergency order during the COVID-19 epidemic lies in that Act. The power to issue Executive Order N-62-20 dated 5/6/2020 can only lie in that Act. If the power to create a presumption in workers’ compensation is not specified in the Emergency Services Act, Governor Newsom may lack the power to create such a presumption. His presumption by executive order may be found unconstitutional.

What follows is a brief discussion of how the Governor is limited to ordering new rules or rule changes for state agencies like the DIR, WCAB, or EDD during this state of emergency. He is not permitted to interpret existing legislation, amend it, or enact it. His issuance of an Executive Order presumption with respect to front line and essential workers is not authorized in the California Constitution or any other statute, including the Emergency Services Act.

Is the executive order of a rebuttal presumption of compensability for essential workers or front-line workers unconstitutional? Does it violate inalienable rights?

The preamble to the California Constitution provides all persons, which includes corporations, inalienable rights which include the right to property. The presumption violates the property rights of employers and insurance companies because it will deprive them of money. They will spend more money on workers’ compensation cases because of this presumption.

Separation of powers is the cornerstone or the California Constitution.

Along with inalienable rights, separation of powers is another cornerstone of the California Constitution. Article III, Section 3 indicates that one branch may not exercise the power of another except as permitted by the Constitution.

Can we raise the issue of unconstitutionality at the WCAB?

The WCAB may have the power to decide that the Governor’s presumption is unconstitutional. Article III, Section 3.5 of the California Constitution prohibits an administrative agency from refusing to enforce a statute on the basis that it is unconstitutional or to declare a statute unconstitutional. This constitutional prohibition, however, does not prohibit an administrative agency from declaring an executive order unconstitutional.

What is the power of the governor?

Article V, Section 1 sets out the power of the Governor in two sentences. He is the supreme executive power. He sees that the law is faithfully executed.

Both the State Constitution and the Emergency Services Act infuse the Governor with extensive and wide-ranging emergency management powers. However, these powers are not without limitation.

As a state’s Chief Executive Officer, the Governor is primarily responsible for protecting the public safety and welfare of the State. The duties and powers, however, are prescribed by the Constitution and statutes. The duties and particular powers of the Governor in states of emergency may be extraordinary or sweeping. However, emergency powers are not absolute.

Reflecting their leading role in disaster response, Governors are granted emergency powers to fulfill their responsibilities in extraordinary circumstances. The range of powers includes suspending state statutes and regulations, ordering evacuations, commandeering the use of private property, controlling access to disaster sites, rationing supplies such as food, water and fuel, implementing specific public health response measures, and authorizing emergency funds without prior legislative consent. He may not have the power to order a presumption of compensability.

Going back to the Emergency Services Act, there is nothing in the Declaration of Purpose and Policy in Section 8550 which allows the Governor to issue his order regarding the presumption.

In Section 8750, which specifically enumerates the powers of the Governor, there is nothing there either.

Section 8627 may be construed as to not provide the Governor the authority necessary for his order. It grants him in a state of emergency authority over all agencies. Authority over an agency, however means the governor can tell agency administrators what to do. Agencies can be told to close or open and to extend or remove time deadlines. Just because workers’ compensation is run by such an agency, however, the governor’s power over that agency may not give him the power to impose a legal presumption in favor of one set of litigants.

There is already a statutory scheme regarding workers’ compensation presumptions. This new presumption by executive order, albeit temporary, will permanently take the property of others without legislation which means without due process of law. It is the Legislature which must enact a workers’ compensation presumption. The Governor cannot order this presumption under the Emergency Services Act. The order may violate the California Constitution.

Does not the legislature have plenary power over workers’ compensation?

Yes. The presumption order may be found to violate the California Constitution Article XIV Section 5. The presumption created by his executive order is a workers’ compensation presumption. The California Constitution gives the legislature plenary (full/complete) power over workers’ compensation in Article XIV Section 5. Therefore, not only may the governor not have the power under our state Constitution, it may prohibit his order since the Constitution expressly gives the legislature complete power over workers compensation.

What can be done to combat the executive order?

Law suits against the State of California are permitted by Article III, Section 5. A Writ of Mandamus may be filed by any employer, insurance carrier, other entity, or individual adversely affected by the presumption declared by executive order.

What has happened in the past when the Governor overreaches?

The Governor has exceeded the limits of his power. He has been sued. He has lost. The basis of the holdings against the Governor was separation of powers.

Contact Kegel Tobin & Truce at our website to discuss further the Executive Order regarding WC Presumption of Injury N-62-20 dated 5/6/2020.


This is for informational purposes and should not be construed as legal advice. Please contact our office via our website for a legal opinion specific to your case.

The following are recommended links:

New Executive Order 05.06.20

Original Executive Order 03.04.20

California Constitution

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