Hastings Constitutional Law Quarterly


Jeremy Zeitlin


The decision of then Governor Arnold Schwarzenegger and Attorney General Jerry Brown to refuse to appeal the United States District Court's findings in Perry v. Schwarzenegger, striking down Proposition 8 as unconsitutional, was a bare assertion of executive power. Although plainly contrary to the will of the majority of the electorate who implemented Proposition 8, the Governor and Attorney General's decision was lawful because it stemmed from the wide discretionary powers that the California Constitution and the Government Code grant to the state's executive officers. Instead, the only check to the particular manner executives wield their discretionary authority is the political system. Historically California's executives have successfully combated the will of the people by hostilely interpreting winning initiatives or appointing opponents of the initiative to carry the law out. These executive attacks on the fruits of direct democracy are effective and worryingly do not provide a clear platform in which the people may hold their elected official accountable for discretionary decisions which deny the successful implementation of popularly enacted initiatives. The refusal to defend, on the other hand, does not allow executives to avoid political accountability. When either the Governor or Attorney General declines to defend an enactment of the people, these officials have no choice but to clearly state their intention to act contrary to the electorate and withstand whatever political ramifications result from such an idealistic stance.