Newly empowered by a constitutional amendment that voters approved last month, Pennsylvania's legislature is on the verge of ending the COVID-19 emergency that Gov. Tom Wolf first declared on March 6, 2020, and has repeatedly extended since then. The election results and the resolution they authorized amount to a sharp rebuke of the Democratic governor's COVID-19 response, which a federal judge described as "shockingly arbitrary." The Pennsylvania measures are part of a broader movement to restrict governors' emergency powers based on lessons learned from the pandemic.
In the May 18 primary election, Pennsylvania voters approved a constitutional amendment that authorizes the legislature to terminate a disaster declaration by a simple majority vote. Previously that required either a two-thirds majority or the governor's consent. Voters also approved an amendment that reduces the length of future disaster declarations from 90 days to 21 days and requires the legislature's approval to extend them.
Yesterday the Pennsylvania House of Representatives passed a Republican-backed resolution terminating Wolf's disaster declaration by a party-line vote. Assuming the state Senate, which also is controlled by Republicans, follows suit, the resolution, which does not require the governor's signature, will take effect once the election results are officially certified.
While Wolf already has lifted most of his COVID-19 edicts, some measures are still in place, including a face mask mandate and a waiver of the work-search requirement for unemployment benefits. "For more than 13 months during the COVID-19 pandemic," Senate President Pro Tempore Jake Corman (R–Centre) told reporters before the election, "Gov. Wolf has exerted nearly unlimited power to suspend state statutes, spend money without the authorization of the legislature, and close schools and businesses as he saw fit." After the election, Corman and Senate Majority Leader Kim Ward (R–Westmoreland) issued a joint statement saying "this decision by the people is not about taking power away from any one branch of government" but about "re-establishing the balance of power between three equal branches of government as guaranteed by the constitution."
Pennsylvania's governor has very broad powers once he declares a "disaster emergency." Among other things, he can suspend statutes and regulations, commandeer private property, issue evacuation orders, suspend the sale of "alcoholic beverages, firearms, explosives and combustibles," and "control ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein." Wolf relied on that last power when he closed all K–12 schools and all "non-life-sustaining" businesses and when he ordered Pennsylvanians to stay home "except as needed to access, support, or provide life sustaining business, emergency, or government services."
Last September, responding to a federal lawsuit by business owners, four Pennsylvania counties, and several Republican legislators, U.S. District Judge William Stickman concluded that Wolf had exercised his powers in a "shockingly arbitrary" way. While Wolf's reopening plan allowed people to congregate for commercial purposes, for instance, it banned political gatherings, including campaign events as well as protests in which the governor himself had nevertheless participated.
Even if those restrictions were treated as content-neutral "time, place, and manner" rules, Stickman said in County of Butler v. Wolf, they could not be reconciled with the First Amendment, which requires that such policies be "narrowly tailored to serve a significant government interest." Wolf's orders perversely treated gatherings protected by the First Amendment as less important than quotidian activities such as shopping and dining.
When Wolf decided which businesses could operate during his lockdown, he likewise drew puzzling distinctions with no obvious relationship to the risk of virus transmission. Small businesses were forbidden to sell hair products, furniture, and appliances, for example, while big-box retailers, because they were deemed "life-sustaining," continued to offer the very same items—a decree that shifted transactions from one place to another without stopping people from visiting stores to buy stuff.
Such capricious dictates, Stickman concluded, could not pass muster even under the highly deferential "rational basis" test, which applies to economic regulations and to equal protection claims that do not involve "suspect" categories such as race and religion. "Distinctions cannot be arbitrary or irrational and pass scrutiny," he noted.
While the country has faced "many epidemics and pandemics," Stickman emphasized, "there have never previously been lockdowns of entire populations," which he called "such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional." The U.S. Court of Appeals for the 3rd Circuit stayed Stickman's decision on October 1, and Wolf's appeal is still pending. But whatever the ultimate outcome, the case illustrates the anger and frustration driving the new restrictions on the governor's emergency powers.
In addition to his own statutory authority, Wolf's COVID-19 orders cited the Pennsylvania Department of Health's powers, which on their face are even broader. The department is empowered to "determine and employ the most efficient and practical means for the prevention and suppression of disease." Another provision says that when the department receives "a report of a disease which is subject to isolation, quarantine, or any other control measure," it "shall carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation."
As the Associated Press notes, "Wolf's office has said repeatedly that measures designed to limit the spread of the virus are unaffected by the constitutional amendments because they are authorized under powers given to the health secretary." In addition to the resolution ending Wolf's emergency declaration, the Pennsylvania Senate is considering a bill that would restrict the health secretary's powers. An amendment to S.B. 618 says "the Secretary of Health may not order or otherwise require a closure" and may not require people to restrict their travel, wear face masks, "shelter in place," "physically distance from other individuals," or "conduct a specific hygienic practice" unless they have been "exposed or potentially exposed to a contagious disease."
Sen. Judy Ward (R–Altoona), who sponsored that amendment, says the aim is to require legislative approval of such policies. "These kinds of decisions should not be made in a vacuum by someone who was not elected by the people," Ward said when she introduced the amendment. "We must work together to develop policies that protect lives and livelihoods. The Disease Prevention and Control Act has been used as a nearly absolute power to take any action they want—regardless of the opinion of state lawmakers, local and county officials, or the public….The amendment simply prevents one person from unilaterally throwing tens of thousands of citizens out of work, barring children from school, and spending millions of taxpayer dollars."
Legislators in many other states agree that the public health powers of governors and their underlings need to be reined in. USA Today reports that "lawmakers in 46 states, Guam and Puerto Rico have drafted 300 proposals this year to curtail their governors' executive powers, as legislative and executive branches fight for authority over school and business closures, mask orders and more." Such limits already have been enacted in several states, including New York, Florida, and Kentucky.
Although Republicans generally have been more skeptical of government-imposed COVID-19 restrictions than Democrats, these debates do not simply pit one party against the other. Democrats in New York and Republicans in Ohio, for example, have supported restrictions on the emergency powers exercised by governors of the same party. As Pam Greenberg, a policy researcher at the National Conference of State Legislatures, noted in an interview with USA Today, there is a principle at stake that goes beyond partisan interests. "Although governors need to be able to respond to emergencies quickly," she said, "legislatures have an important role in making sure these powers are not abused."