PA Supreme Court Rejects GOP Challenge to State COVID Orders, Rules They Have "Force of Law"
HARRISBURG (JUL 1 2020) - A divided Pennsylvania Supreme Court rejected the republican-controlled Pennsylvania legislature's attempt to do an end-run around the state constitution and prematurely terminate the commonwealth's public health emergency declaration and various mitigation orders which flow from the declaration. In doing so, it ruled that the state's COVID mitigation orders enjoy the "full force of law." On a 4-3 vote, the state high court ruled that the legislature's attempt to overturn Governor Tom Wolf's emergency orders were unconstitutional. The court further ruled that Wolf's orders had the force of law because the General Assembly had given him the power to enact them. On March 6, 2020, in response to the COVID-19 pandemic, Wolf issued a Proclamation of Disaster Emergency pursuant to the state's Emergency Management Services Code. The EMS Code gave the Governor the authority under a section that said, in part "The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency."
On June 3, 2020, the Governor renewed the Disaster Emergency Proclamation for an additional ninety days. On June 9, 2020, the Pennsylvania Senate and the Pennsylvania House of Representatives adopted a concurrent resolution ordering the Governor to terminate the disaster emergency. Called H.R. 836, the republicans refused to submit it to the governor for acceptance or veto, called "presentment", as is done with all other legislation. They claimed they were not required to do so under the statutory EMS Code which delegated the authority to issue disaster declarations to the governor. On June 11 they filed a lawsuit to enforce it. The governor asked the Pennsylvania Supreme Court to hear the case directly, which they agreed to do on June 17. The state's top court ruled today that the republicans violated the state constitution by refusing to present the resolution to the governor. The court's majority opinion quoted the Pennsylvania constitution, which states:
Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.
"That text has remained virtually unchanged since 1790," the Supreme Court said in its opinion. "Our Constitution is clear: all concurrent resolutions, except in three narrow circumstances identified below, must be presented to the Governor for his approval or veto. To allow a concurrent resolution that does not fit into one of the exceptions to take effect without presentment would be to authorize a legislative veto." The "three narrow exceptions", in the state constitution, are resolutions on adjournment of the General Assembly, proposals of a constitutional amendment, and resolutions with no legal effect unrelated to the legislative function.
Concluding that the resolution seeking to pretermit the state's response to the COVID pandemic did not fit into one of the narrow constitutional categories excusing presentment, the court rejected the republican attempt to enforce it. Addressing the republican argument that the emergency declaration lacked legal effect, the court similarly rejected the arguments of the republican legislators, saying "it is obvious that this order had legal effect." The court said that the EMS Code "specifically" gives the governor "the authority to issue executive orders and proclamations which shall have the full force of law.”
The court said that the republican claims to the contrary "elevate form over substance." The opinion ruled that the orders of the governor and his agencies, such as the state health department, were "orders with the force of law, such as requiring the closure of certain businesses." The governor's COVID mitigation orders, the high court went on to say, were part of the "broad powers granted to the Governor in the Emergency Code [and] firmly grounded in the Commonwealth’s police power.”
The decision is a decisive win for the governor and eliminates many republican arguments against the various orders issued with the intention of stemming the outbreak of the virus in Pennsylvania.