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.

Comments

[Dr. Ed]

Someone is going to get hurt before this is over….

[librarian]

Maybe you should go into an underground bunker and cut off all communications, before it’s too late.

[Dr. Ed]

https://www.woodtv.com/health/coronavirus/protest-for-moderate-coronavirus-rules-in-lansing-today/

[Commenter_XY]

The statute seems overly broad: …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.

Seriously, could you not justify bans for anything, given the authority stems from even a ‘possible loss of life’? Who not close all liquor stores forever, or skateboard parks, or even Fairmount Park, for that matter?

[Rossami]

Overly broad such that it’s bad policy? Absolutely.

Overly broad such that a person is not on reasonable notice of what is and is not illegal? Doesn’t apply since this is a grant of authority to the governor, not an actual criminalization of everything that could possibly fit in that definition.

Now, if the governor tried to apply restrictions using such vague language, the governor’s order would clearly be overly broad. But I don’t see that applying to this delegation law.

[Commenter_XY]

Rossami….Thx for replying. Let me ask you.

In the People’s Republic of NJ, the restrictions proposed by the governor and passed by the NJ Legislature enacted those restrictions for ‘an indeterminate period of time’. Not temporary, or time-bound. Just for an indeterminate period of time.

Question: Is that kind of open-ended restriction constitutional – ever?

I maintain that it is not. Sadly, no one can litigate that question here in the People’s Republic since our courts are closed…by a judicial edict issued by the Chief Justice of NJSC.

What do you think?

[Rossami]

Well, maybe. I think such open-ended rules are astonishingly bad ideas. But I don’t think they violate the US Constitution. (I don’t know enough about the NJ constitution to have an opinion there.) The problem is that while the federal Constitution is written on the principle of enumerated powers, states retain general “police” or “plenary” powers. And most courts have given great deference to the power to states to do stupid and even self-destructive things. That could theoretically include shutting down all commerce in a particular area forever. (States already do that, outlawing businesses or practices even though there is no federal law against it.)

Now, I think there might be an as-applied challenge to the situation you describe since the restriction is indeterminate AND the courts needed to challenge the rule are closed indefinitely. That might go beyond the constitutionally-guaranteed “right to petition the government”. And since that’s a federal right that’s been incorporated against the state, you might be able to get a federal judge interested even though the NJ courts are closed. But I’m guessing. I’m a little out of my depth here.

[mse326]

Reading that definition of “natural disaster” I don’t think a pandemic qualifies. It would have to fall under the “other catastrophe” catch all, but under normal rules of statutory interpretation you read that in the context of the given examples. All are weather and geologic phenomenon, unless you read fire and explosion expansively to include even man made which would be odd given that such a reading could hardly be called “natural”. Pandemic isn’t, it is biological. If we were just trying to interpret something like the word “emergency” then pandemic would be covered, but here we are limited to “natural disaster”

[David Nieporent]

Unless the conspiracy theorists are right and coronavirus was manufactured by the Chinese military (or, the even kookier conspiracy theorists are right and it’s actually caused by 5G), in what way would a virus not be a natural disaster? Where does it come from, if not nature?

[mse326]

But you aren’t interpreting “natural” you are interpreting “other catastrophe” in the context of the concrete examples given. No other biological phenomena are listed

[David Nieporent]

I don’t know why you think “biological phenomena” is a category in the first place, though. (What other “biological phenomena” could there even be that would trigger this? A buffalo stampede?)

[mse326]

crop infection (think the potato blight)
pest infestation
disease that isn’t created, but grows because of human causes (think diseases aided by poor sanitation)

Those are just examples, there are others. I treat it as a different category because it is a different category
https://academic.oup.com/bioscience/article/61/4/312/324972
This is an article asking if they should be treated as natural disasters. It argues yes, but it does so as a policy matter, not by saying it fits the normal definition. There is a reason they ask the question.

And to be clear if it simply said “natural disaster” in the statute I’d say including this is a reasonable interpretation, if not mandated. But this statute goes further to define it and the canon of eiusdem generis should apply.

[David Nieporent]

And to be clear if it simply said “natural disaster” in the statute I’d say including this is a reasonable interpretation, if not mandated. But this statute goes further to define it and the canon of eiusdem generis should apply.

Well, I, and the court, and the governor, and likely the legislature, all disagree with your interpretation of that as being a separate category. (Why would the legislature not have wanted to include these sorts of things as natural disasters?)