The Volokh Conspiracy

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Penn. S. Ct. Holds Governor's Shut Down Order Was Statutorily Authorized, Didn't Violate Separation of Powers


More from yesterday's Friends of Danny DeVito v. Wolf, handed down yesterday. Three Justices partially dissented as to other matters, but they agreed with the majority on point 1 below, and expressed no contrary views as to point 2.

[1.] The Governor had the statutory authority to issue the shutdown order. The court concludes that epidemics are covered under the statutory definition of "natural disaster,"

Any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life.

And the court points to various emergency management provisions that give the Governor broad powers to deal with natural disasters; the court reasons, among other things,

We further note that the Emergency Code provides that, upon the declaration of a disaster emergency (as occurred here), the Governor has expansive emergency management powers including to "direct and compel the evacuation of all or part of the population from any stricken or threatened area within this Commonwealth if this action is necessary for the preservation of life or other disaster mitigation, response or recovery." 37 Pa.C.S. [§ 7301(f)(7)]. While the Governor took far less extreme measures with the closure of certain businesses, to the extent Petitioners are suggesting that the Governor lacked the authority to do so, this statutory authorization of a much more drastic measure disproves the point. Thus, the Executive Order's closure of non-essential businesses in Pennsylvania is authorized by Section [7301](f)(7) of the Emergency Code.

[2.] The order doesn't violate separation of powers, at least as to the argument that the plaintiffs tersely made ("'[A]ny executive order that, in essence, creates law, is unconstitutional.' The governor's comprehensive, detailed determination of which types of businesses 'may continue physical operations' constitutes an attempt at legislation, which is the exclusive province of the legislative branch of government."):

[T]he General Assembly, by and through its enactment of the Emergency Code, specifically and expressly authorizes the Governor to declare a disaster emergency and thereafter to control the "ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein." Inherent in that authorization is the Governor's ability to identify the areas where movement of persons must be abated and which premises will be restricted in order to mitigate the disaster. That the Governor utilized business classifications to determine the appropriate areas and premises to be directly impacted by the disaster mitigation is likewise inherent in the broad powers authorized by the General Assembly.

Seems sound to me; one can imagine an argument that the statute excessive delegated legislative power, but such arguments are hard to win, especially as to disaster emergencies, where such broad executive discretion seems especially justifiable.