HARRISBURG – After Pennsylvania voters in last month’s primary election opted to amend the state constitution and limit emergency declaration powers for Gov. Tom Wolf and all future state governors, a Philadelphia attorney says that the move will compel cooperation between the executive and legislature branches.
On May 18, a majority of statewide voters chose to amend the language of the Pennsylvania Constitution to limit emergency declarations to 21 days without legislative approval and permit the state legislature to end any emergency with a simple majority vote.
The move was seen by some as a referendum from voters on Wolf’s broad and unprecedented use of executive emergency declaration powers to combat the COVID-19 pandemic.
After Wolf signed an extension of the emergency disaster declaration for COVID-19 late last month, the state legislature then moved to continue only certain sections of the policy through House Resolution 106.
Wolf called the events “a discouraging development” in a recent statement.
“The administration outlined the powers and actions taken under the disaster declaration and vowed to work with the General Assembly as they acquired this new power under the constitution. The administration outlined the election certification process and provided information under the disaster declaration. First, the legislature is taking this action prior to the certification of the election. Without this certification, the constitution has not actually been amended,” Wolf said.
Wolf explained that the state legislature was attempting to terminate specific actions that are not set forth in the disaster proclamation including occupancy limits, stay-at-home orders and business closures.”
“These actions were taken subsequent to the disaster declaration. The constitutional amendment granted them authority to terminate or extend in whole or in part the disaster declaration, and the specific orders are separate and apart from the proclamation. After a productive meeting with the legislature last week, the administration learned of their actions from a press release. The voters gave the legislature tremendous responsibility. The administration stands ready to work with the legislature, but this is a discouraging development.”
Even when Wolf approved gradual rollbacks to COVID-19 restrictions over the course of the pandemic, he kept the disaster declaration in effect in order to put restrictions back in place, should cases of the virus see another spike.
But now, Wolf will be required to work together with the state legislature to provide for the return of any restrictions, should that ever be found necessary.
The House of Representatives was expected to vote on HR-106 on Tuesday. However, the official results of the primary election are yet to be certified by the state and until they are, both the new amendments and HR-106 will not be able to take effect.
Philadelphia Attorney Says New Amendments Will Require Wolf And General Assembly To Collaborate
Kevin Levy, an attorney with Saul Ewing Arnstein & Lehr in Philadelphia, said that emergency declaration powers in Pennsylvania originate from state statute, as opposed to the state constitution.
Levy called this “a very concentrated, very purposeful action by the founding fathers, by the writers of the state constitutions.”
“Under the state emergency management code, the governor has the authority to declare a state of emergency and then to issue emergency executive orders. We’ve seen them used over the last year to suspend state restrictions and state regulations that get in the way of the governor trying to manage whatever emergency he’s dealing with,” Levy said.
“The second front that he’s summoned is to impose new restrictions; on capacity, on mask-wearing, new requirements for businesses to mandate certain things or do additional things during the COVID-19 emergency.”
Levy explained that the General Assembly has frequently been at odds with Wolf over his emergency declaration policies during the course of the pandemic, a rift highlighted by Scarnati v. Wolf.
That case, which centered on the General Assembly’s attempt to terminate the governor’s emergency disaster declaration order, went to the Supreme Court of Pennsylvania and saw the order upheld in July 2020.
Levy referred to that decision as “a very technical reading of the emergency management code, combined with the Pennsylvania Constitution.”
Ever since that ruling, Levy added the General Assembly had been working “overtime” to provide for constitutional remedies which would limit the governor’s breadth and use of emergency executive powers.
“As a result of these amendments, the emergency powers of the governor will be regulated by constitution. And that’s for the first time in Pennsylvania,” Levy said.
As to how the amendments would affect standing COVID-19 orders, Levy pointed out in a May interview that they were soon to lapse anyway and make the 21-day limit question “procedurally irrelevant.”
For the moment, Levy concluded that the approval of the new amendments will ensure that a governor and the state legislature will need to work hand-in-hand when it comes to enacting emergency disaster declaration orders in the future.
However, Levy clarified that the mask-wearing restrictions remain in place and are not affected by the amendments, because they exist under separate authority from Pennsylvania Secretary of Health Dr. Rachel Levine and the state’s disease prevention control law.
“She does have that authority to continue the mask requirements, even though the governor has lost the ability to do the same. If you remember, in the early days of the pandemic, Gov. Wolf and Secretary Levine were issuing, verbatim, the same exact orders. And that was for this precise reason: In case the governor’s authority was taken away or struck down by the state Supreme Court, the Secretary of Health could issue the same restrictions,” Levy stated.
“She will have the authority, over the next several months, to continue issuing her mask restriction order, or, and this is notable, to start implementing some of these capacity restrictions again. I think if that occurs, we will see the General Assembly start to take a look at her authority, either under the state disease prevention control law or to potentially revisit the constitutional amendment concept.”
Levy predicts that to be a “less likely” circumstance, given that such a process would need two years to take effect, but nevertheless, Wolf has indicated that he would reconsider the idea of COVID-19 mitigation orders, if case counts were to spike again over the summer.
“That remains an open question: What is the Secretary of Health’s authority to deal with COVID-19 moving forward?” Levy said.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com