The Volokh Conspiracy
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Earlier this month, I blogged about legislation in New York that would limit the Governor's emergency powers. In May, the voters of Pennsylvania will have an opportunity to claw back the executive's authority. Jennifer Stefano summarizes the measures in the Wall Street Journal:
During the initial 90 days [starting in March 2020], the Legislature sent Mr. Wolf seven bills tailored to reopen certain businesses safely and establish consistent Covid-19 mitigation standards. He vetoed them all. Last summer, the Pennsylvania Supreme Court, which is dominated 5-2 by Democrats, sided with the governor and allowed him to veto the Legislature's attempt to rescind his special powers and claw back control over emergency disaster declarations. Mr. Wolf has renewed his initial emergency declaration four times, most recently on Feb. 19.
Now the General Assembly is asking voters to approve two ballot measures that would return control over emergency declarations to the people's representatives in the legislature. The first would limit the length of an emergency disaster to 21 days, down from 90. After that, only a joint resolution by the legislature could extend the proclamation. The second measure would amend the Pennsylvania Constitution to allow the General Assembly to pass a resolution, which the governor cannot veto, by a simple majority to extend or terminate the governor's emergency declaration." Should these ballot measures succeed, Pennsylvanians will have completed a rare reversal of ever-expanding executive power.
As with most absolute grants of power, Governor Wolf exercised this power arbitrarily. In September 2020, the U.S. District Court for the Western District of Pennsylvania found the Governor's determination of what was, and was not "life-sustaining" to be irrational:
The record shows that the Governor's advisory team, which designated the Business Plaintiffs and countless other businesses throughout the Commonwealth as "non-life-sustaining" and, thereby, closing them, did so with no set policy as to the designation and, indeed, without ever formulating a set definition for "life-sustaining" and, conversely "non-life-sustaining." The terms "life-sustaining" and "non-life-sustaining" relative to businesses are not defined in any Pennsylvania statute or regulation. . . . The record demonstrates that the policy team's unilateral determination as to which classes of businesses would be classified as "life-sustaining" was never formalized and the team never settled on a specific definition of "life-sustaining." COUNTY OF BUTLER, et al, Plaintiffs, v. THOMAS W. WOLF, et al, Defendants., No. 2:20-CV-677, 2020 WL 5510690 (W.D. Pa. Sept. 14, 2020).
The Secretary of State has posted the text of the measures here:
Shall the Pennsylvania Constitution be amended to change existing law and increase the power of the General Assembly to unilaterally terminate or extend a disaster emergency declaration—and the powers of Commonwealth agencies to address the disaster regardless of its severity pursuant to that declaration—through passing a concurrent resolution by simple majority, thereby removing the existing check and balance of presenting a resolution to the Governor for approval or disapproval?
Shall the Pennsylvania Constitution be amended to change existing law so that: a disaster emergency declaration will expire automatically after 21 days, regardless of the severity of the emergency, unless the General Assembly takes action to extend the disaster emergency; the Governor may not declare a new disaster emergency to respond to the dangers facing the Commonwealth unless the General Assembly passes a concurrent resolution; the General Assembly enacts new laws for disaster management?
Ballotpedia offers a summary of these measures.