Pennsylvania Voters Can Approve Constitutional Amendment To Limit Governor's Emergency Powers

"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"

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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.

NEXT: The Precarious State of the Georgetown University Law Center

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  1. These quack, mass murderer, Dem Govs must be stopped. They are out of control. They killed COVID patients and poor people by starvation. They destroyed the re-election of Trump. They defrauded Medicare by $billions with false COVID death certificates. Not just stripped of power, but also in federal stir.

    1. Raving lunatic.

      1. Incompetent commenter. Attack the message, not the messenger, or you are worse than him.

        1. “Jeez, this guy has lied and said dumb things to me 100 times, but this 101 time I must give him a fair hearing!”

          Some people have never met inductive logic.

    2. Hundreds of lawsuits , including by a blogger, failed. The lockdown did not have a scintilla of rational governmental purpose. These quack Dem Gov allowed young infected, asymptomatic essential workers to travel. They provided intimate care to moribund nursing home patients. That caused a mass eradication of this population. Most of the death count, if not outright fake, is of people dead with COVID, not from COVID.

      The federal courts totally failed to help when they had an opportunity.

      The world GDP dropped by $4trillion. Our billionaires increased their wealth by $1.7 trillion. Their Chinese peers scored $2.2 trillion. Millions died of starvation.

      Since the 14th Century, quarantine practice has been to lock down the infected. A village in Italy did that and ended its epudemic. This is the first time, the normal have been locked down. The legal profession failed us again.

      1. Decreasing face to face interactions in the face of a virus passed in the air didn’t have a ‘scintilla’ of rational purpose, sure.

        You’re a raving loon.

        1. Now you know how the rest of us see you.

          1. Please, defend his comments. They are not lunacy, the person calling it so is. Bring it, bigmouth.

            1. Please attack his comments, not him.

              1. Inductive logic, how does it work?

                1. Not the way you apparently think it does.

                  The logic you suggest allows you to ignore him. It does not legitimize ad hominin attacks on him.

              2. I think it is nice to see disaffected malcontents try to stick together occasionally. An occasional break from the unrelenting bleakness of being a hopeless misfit must be welcome.

              3. Please attack his comments, not him.

                Fair enough: his comments are raving loony.

                1. David, you believe in mind reading. when the person has forgotten the event. You believe in reading the minds of dead people, when the language they left is plain and at the 8th grade level. You can’t read, 1L made you a hopeless lawyer dumbass. All you understand is rent seeking. How does it feel to belong to the most failed, most toxic occupation, 10 times more toxic than organized crime?

                  1. How does it feel to belong to the most failed, most toxic occupation, 10 times more toxic than organized crime?

                    I’ve already got space lasers, so awesome!

  2. The Legislature like Congress should be supreme in a republican government. Hopefully the legislatures are starting to learn not to give blank checks to the governor’s. The courts aren’t covering themselves in glory as some of the legislatures attempt to revert to the status quo.

    1. No, the courts aren’t covering themselves in glory — and will someday pay a price in reduced power & prestige as a result.

      I’m also thinking that few of these fascist Governors will be reelected.

    2. Writing good law is certainly harder than it looks, but hopefully some in the legislature are learning that to pass these laws that allow the Executive to just fill in the blanks is to invite tyranny.

      Among the co-equal branches these days, I admire the judiciary most for trying to rule as narrowly as possible, and legislatures least for trying to pass law based on feelz– a broad generalization aimed mostly at the federal level.

  3. Somewhat reluctantly, I have come to an opinion that putting a legislature in the driver’s seat during a pandemic emergency—and likely during other kinds of emergencies—is the wrong approach.

    For one thing, legislators are too often motivated to create opportunities for executives from an opposing party to fail, regardless of consequences for the populace. In a pandemic more deadly than this one has been, that impulse could prove catastrophic.

    It does not seem to work the other way round. Governors do not seem so willing to harm constituents in an attempt to discredit legislatures. It seems as if both divisions of government expect voters to hold the governor primarily responsible for emergency outcomes—which is an excellent reason to leave governors in charge of them.

    For another thing, politicians in legislative office show a marked tendency to prefer being wrong in plentiful company to sticking their necks out to do what is right. They also seem more interested in hedging against loss than they are in claiming credit—especially because there is so much risk of being found mistaken and accountable in a failed attempt to seek credit.

    Thus, legislators characteristically think doing wrong in company is less likely to alter the status quo than attempting something risky on your own. For politicians in office, the in-office part of the status quo is the highest priority on every agenda.

    Emergencies by their nature call for energetic response. But seeking the safety of group consensus is enervating. Political parties operating collectively in legislatures have long-since proved that risk of enervation is a risk that bothers them not at all. Stasis will do fine—especially given that legislative leaders are almost always held immune politically by their own constituencies.

    By comparison, the eminence of a governor’s seat affords little company to hide among. That is another advantage for putting emergency responsibility on governors instead of on legislators.

    1. Your opinion is not incompatible with legislation being passed in PA and elsewhere in the country.

      The executive branch still gets to manage the emergency, but the people’s representatives get a timely say on whether or not they agree the emergency is real and continues to justify such a consolidation of power.

      1. Variant, I don’t see how that addresses my objection. The concern is that to hurt politically a governor from another party, a hostile legislature might prevent the governor from responding effectively to an emergency, so he could be blamed at election time for the failure.

        1. Then make the case that the legislature should take the blame, instead. Don’t advance us towards dictatorship.

          1. As long as its his party that’s dictating he’s OK with it.

          2. Brett, there is no practical way to make a political case that the legislature should be turned out, while it is blaming the governor. Diversity of opinion in the legislature, and absence of action to put legislators on record, make trying to do that a fool’s errand. Legislators have no reason to fear that as a practical possibility, and they don’t. Which is why they so often avail themselves of the tactic to hurt the electorate to get the governor in trouble.

            Also, paranoia about gubernatorial dictatorship is misplaced. It is easy to vote a governor out, in one election. Happens all the time. Voting out a legislative majority is usually the work of multiple elections, and rarely happens in response to any single issue. What makes that important is that every governor understands it, and agrees with it. Which makes governors accountable, in ways legislatures are not.

            1. “It is easy to vote a governor out, in one election. Happens all the time. Voting out a legislative majority is usually the work of multiple elections”

              This must be new math. No state has a term of office for governor that is more than 4 years (two serve for two years).

              Most state senators also serve 4 year terms (a dozen odd serve 2 year terms). State representatives are approximately the inverse – most serve two years, and a few serve 4 years.

              There are no states where it takes more than 4 years to replace the entire state government. In fact, legislatures are more responsive to electoral pressure – most governors has a Mean Time Before Election of two years, while most representatives have an MTBE of 1 year.

  4. Unitary executive not so cool now I guess.

    If only COVID could, under a microscope, be shown to be made up of brown viruses yelling ‘allah akbar’ then conservatives could be counted on to rush to defend extraordinary executive powers as usual…

    1. Tech billionaires scored $3.9 trillion, especially the Chinese. The Democrats won a hopeless election, and are imposing their leftist policies. The federal judiciary utterly fsiled to protect our rights. The lawyer profession utterly failed to protect us from these vicious Commie enemies. The entire federal judiciary should be impeached.

      1. I don’t even think a monkey could string together these hyperbolic overgeneralizations. A lunatic monkey though? Yes, that could be.

    2. The only thing the “unitary executive” means is that the executive is entitled to directly exercise all powers of the executive branch, or direct how subordinates will exercise the bits that have been delegated, and is, accordingly, responsible for everything the executive branch does.

      It has nothing whatsoever to say about how extensive those powers should be.

      1. Sure, that’s why it was invoked when talking about rendition, military tribunals, indefinite detention, etc., which your side cheered loudly and consistently back then.

        1. Of people who lawfully could have been killed on the battlefield.

          Someone’s forgetting that little bit.

          1. This elides that the ‘war on terror’ is a very different war that often might include citizens.

      2. Brett, you’re a hopeless conspiracy nut, but I like you. There’s a hint of principle in you I think, so let me expound.

        The unitary executive theory got invoked a lot around an incredibly vague bit of constitutional language (the CoC). That’s terrible from mine, and an ostensible libertarian perspective imho, but consider that state executives have the police power which is *far* more general in it’s language. When someone champions actions under the first but is hypercritical of actions under the second I have to think, wtf?

        Btw-how is the home brewing going?

        1. States have the general police power. Not all of that devolves to the executive branch of a state. Again, “unitary executive” does not mean what you are claiming.

          1. Was I talking about what the language is or how it was used? Invoking vague language to give executives power maybe?

            Herpitidy Derp

            1. As far as we can tell, you were talking about your misconception of the language being used, and now you are refusing to address people when they try to correct that misconception.

        2. Well, my banana bochet came out a bit insipid, not at all the bananas foster flavor profile I was aiming for. Won’t be making that again. I’m working with some nutmeg and clove to see if I can give it a bit more interest before bottling it.

          OTOH, my blood orange/cranberry mead turned out rather pleasant, I’ll have to see if I can get more blood oranges to start a new batch. The flavor is distinctively different from my usual navel orange/cranberry mead, (Which is kind of a drinkable version of the holiday relish, as intended.) the flavor isn’t as “bright”.

          I’m preparing to send a few bottles of this and that to the WineMaker competition again this year, to see if my bronze medals last year were just beginner’s luck.

          1. I personally don’t like sweetness in my beer, but I respect what you are doing.

            Good luck on the blood orange/cranberry mead submission!

            As a favor, I have a chili recipe that calls for a ‘bottle of beer.’ What would you suggest here? I keep choosing poorly….

            1. Does the chili have heat? Or is it mild? That matters.

            2. I usually use Kentucky Bourbon Barrel beer for cooking purposes. (Unless the recipe specifies a sort.) But I’m probably not a good guide for that, I don’t drink beer, I really don’t like hops. I just use it for cooking purposes. Nothing better for cooking breakfast sausage in!

              My brother out in CA is the one who brews beer. In fact, he’s a beer judge.

              We’re having a get together this summer in Zion national park, we’ll each be bringing some of our own brew and trading. Maybe I’ll find I like his homebrew better than the commercial stuff.

            3. You might try a beer with a substantial malt or cereal nature (rather than, for example, a hop-heavy beer such as an IPA) in chili. A red ale or amber lager could be good. A stout or porter would be worth trying, too. If you are looking for sharp bitterness rather than a sweet, mellow flavor, though, try an IPA.

              I have heard that the alcohol (before it departs) enhances some of the tomato and perhaps other flavors.

              It is difficult to go wrong with the traditional dry stout from Guinness (widget can, not bottle).

              A barrel-aged beer could be a fine pick but might not be for everyone. Those tend to be heavy on the alcohol, so you might wish to let the chili simmer a while to avoid astringency.

              1. Yes, alcohol can be pretty effective at extracting a lot of flavors that aren’t particularly water soluble. Particularly in tomatoes. You can do it by very, very long simmering, instead, but that tends to lose you the volatile flavor components, which are usually pretty important in tomato based dishes. (That’s why you should save the basil for right before serving.) Gotta watch out in chili, though, because capsaicin is a fat/alcohol soluble flavoring, you’ll get a hotter result using alcohol than you might expect.

                The alcohol is going to boil out pretty quick, in my experience, so using high alcohol beverages isn’t really an issue unless it’s a splash right at the end.

            4. Mead is not beer.

              1. Neither is (most, if not all) seltzer, cider, ‘fermented fruit beverage,’ spritzer, cooler, or the like . . . but a number of regulators (and plenty of consumers) have expanded the definition of beer (or malt or brewed beverage).

    3. Queenie, you seem confused over what the unitary executive means. It doesn’t give the executive branch more power, it says what power it has is controlled by the Chief executive.

      For instance if congress did grant the CDC power to order an eviction moratorium, then the president an order the CDC director to implement it. But if congress didn’t grant that power to the CDC, then it doesn’t have the power to implement it whether the president orders it or not. Unitary Executive merely insures the CDC director reports to the president, it doesn’t enhance any power granted to the CDC by congress.

      But also many states don’t have a Unitary executive. They have other statewide executive elective offices, and they might not have an clause in their state constitution analogous to: “The power of the Executive Branch is vested in the President of the United States”.

  5. I’m fine with it if that’s what PA wants to do but this seems like just posturing.

    Any major emergency will have FEMA involvement anyway.

    Also, it doesn’t seem like PA has massive emergencies like floods, tornados, hurricanes, wild fires, etc., like we see in the rest of country which would require an emergency declaration longer than three weeks.

    1. “Also, it doesn’t seem like PA has massive emergencies like floods, tornados, hurricanes, wild fires, etc., like we see in the rest of country which would require an emergency declaration longer than three weeks.”

      Oh, really? https://www.weather.gov/pbz/hurricane

        1. And a list of significant PA floods — Jonestown was a dam failure:
          https://www.weather.gov/safety/flood-states-pa
          (Remember they get snow, and if it all melts at the same time…)

      1. Thanks for proving my point.

        I didn’t say PA doesn’t have storms, even significant ones.

        I just don’t recall any Katrina-level events.

        1. Johnstown? (albeit in 1889)

          “On May 31, 1889, a catastrophic failure of the South Fork Dam on the Little Conemaugh River, approximately 14 miles upstream of Johnstown, PA, resulted in one of the worst natural catastrophes in the history of the United States, creating the largest loss of life from a natural disaster not caused by a hurricane or earthquake.

          Intense heavy rains fell across the area in the day preceding the failure, and the poorly maintained earthen dam rapidly weakened and subsequently failed during the afternoon hours. This sudden failure sent a torrent of water down a steep canyon, into the heart of Johnstown. It was reported that the flood wave produced a wall of water 35 feet high and a half mile wide, moving rapidly down the narrow valley at 40 miles an hour! Historical reports indicate that there were a couple hours of warning given; but few people heeded the calls to move to higher ground. The flood and subsequent fires killed 2,209 people, destroyed 1,600 homes and produced $17 million in damages (1989 dollars).

          Flooding was also widespread across the state from this weather event. Major flooding was reported along the West Branch of the Susquehanna River. The prosperous lumber town of Williamsport reported that 75 percent of the town was under water during the peak of the flooding. Major flooding was also reported in Tyrone, Lewistown and Huntingdon, with a significant loss of life and property damage reported in the region.
          |
          This flood event led the way for a series of river gages to be installed across the region in order to improve upon flood warnings.”

          1. Negligence (likely criminal, documented by Daniel Morrell) and other misconduct of the South Fork Hunting and Fishing Club was far more responsible than an acute storm for the Johnstown Flood.

            The 60-foot-wall of water that hit Johnstown (twice, if not three times, because of rebound along hills) had been accumulated by the owners of a dangerous dam.

            The Johnstown Flood precipitated enormous improvement in American tort law, some of which still bothers some people to this day.

        2. Have you forgotten Three Mile Island in 1979?

          Katrina was government incompetence, if they’d kept the pumps running, the city wouldn’t have flooded so much.

          Ans they have had earthquakes in the 5 range.

          1. TMI was a bit of an iatrogenic disaster; If everybody outside the reactor fence had ignored what was going on, everything would have been fine. The evacuation caused more damage than the accident did, the plant didn’t even exceed its monthly quota for emissions. Nobody outside the plant was exposed to radiation levels above the normal range of variation for the area.

            But, outliers like Chernobyl excepted, that’s normal for reactor accidents.

    2. COVID has actually been pretty benign by emergency standards. Climate change would be next.

    3. The PA Constitution actually specifies years of floods for which emergency powers were granted.

      So, no, this is not posturing. This is about preventing a future governor from usurping powers and abusing the constition as Wolf did.

  6. Here’s why you can’t take conservatives seriously on this kind of thing.

    When a few brown people flew planes into buildings they fell over themselves with: let’s create the largest (by far) federal agency, let’s invade other countries, let’s have people searching people’s shoes before they get on planes, if you are not for these things you are against US and freedom fries!!!!

    But when you have a global pandemic they are like, ‘the executive branch told us we have to wear a mask for brief periods of interaction, TEH TYRANNY DON’T TREAD ON US!’

    1. “a few brown people”. That’s “some people did something” level dissembling. You are a ranting loon.

      1. Yeah buddy, ‘all lawyers are case and should be arrested for treason!!!’
        Dissembling. Herpitidy Derp

    2. Well, when you’re right, you’re right: If only the 9-11 hijackers had been pale complected, we’d have been much more chill about the attack.

      Though I’ll agree that the TSA was a stupid idea, and the amount of security theater that came out of that attack makes me question if our government is still capable of being serious.

      1. Why so much more chill about Covid super-spreaders (killed more than 9-11 attackers)?

        1. Probably because the causal connection between flying planes into a skyscraper and people dying when it falls is fairly direct and obvious, and the damage deliberate. And if you don’t do something about groups engaging in such acts, the damage can keep increasing without obvious limit, because they’re actively trying to cause damage.

          Whereas “super-spreaders”, (To the extent the term actually has any useful meaning.) are statistically inferred, generally not deliberate, and it’s actually questionable whether, in the end, they cause any increase in total deaths from a disease, or just change the details of the timing.

          The term has been subject to an absurd amount of political manipulation.

    3. “Brown people”? Wow…. That’s ethnically insensitive.

      1. Insensitive?

        At a blog that publishes a vile racial slur roughly weekly, and often gratuitously?

  7. We need the same thing to happen in the People’s Republic of NJ.

    The governor, Phailing Phil Murphy, killed constituents with his utter incompetence.

    1. How many did the Trump administration kill, according to its former pandemic coordinator?

      Carry on, clingers.

  8. Sure wish we had a similar Constitution in Virginia. Here, the Governor has NO time limits on his so-called emergency powers. Who knows when they will end? The Governor only serves one term, but who knows what happens to an emergency order that is still in place when his term expires? It’s never been tested before, to my knowledge.

    Gov. Northam has been a TERRIBLE governor during this whole thing. No one will be more happy to see him go than I. He had a chance to do the sensible thing, heck he’s even a physician! but no, we had to have 6 extensions to “temporary” executive orders.

  9. Good for them. Not that it will matter. The judiciary will just come up with a reason that the plain text can be ignored if it comes up again. I imagine a one minute break between emergencies ought to give them the cover they need to ignore their constitution.

    1. I’m waiting for the executive to just ignore stuff it doesn’t like. Whether its legislative or a court order.

      Poll observers in Philly had a court order that they be allowed in to observe.

      Philly police response “how are you going to enforce that?” And of course no consequences to this action

  10. And the first time the assembly is going to be on the hook for a hard decision, they will rubber stamp extensions. It is a fig leaf.

  11. Clearly the emergency powers have become the greater emergency. We now have an emergency of our own making, engendered by best intentions to enable government to protect the public. What is the net effect of the exercise of those powers? While individual decisions might have been well intended, the cumulative effect of those powers has only been to the destruction of liberty, prosperity and our lives. When coupled with how many tens of thousands of deaths were caused by bureaucratic and executive decision rather than just the virus itself, in the end this will have been more an epidemic of human nature than virus nature.

  12. There is no suspend the constitution clause in the constitution. The last year is the reason why. Its a very bad idea. Numerous legal eagles swear its there just written in invisible ink. Just ask the Volokh gang.

    Now when you have a judiciary that is complicit with the executive as SCOPA is you have now eliminated the checks and balances. SCOPA also thought the executive branch breaking PA election was OK, because? They are Democrats first and foremost, not judges.

    1. How are the searches for those lost votes (Georgia, Pennsylvania, Wisconsin, Arizona, Nevada) and for Obama’s Keynan socialist Muslim communist birth certificate coming along, wreckinball? Are you one of Trump’s “top people” on those cases?

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