Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
The novel coronavirus pandemic has many Americans struggling to keep the wolf from the door of their homes and businesses. For Pennsylvanians, the threat is even more menacing, because the Wolf at their doors is the governor. Worse yet, the state supreme court just invited him in.
Like many of his counterparts across the country, Gov. Tom Wolf unilaterally declared a state of emergency in response to the pandemic. In a Proclamation of Disaster Emergency issued on March 6, he put himself in charge of the state’s response to Covid-19 to the exclusion of the elected legislature. Since that date he has issued multiple executive orders with binding legal effect—that is, new rules or suspensions of laws (with at least temporary effect)—never approved by the legislature.
As in many states, the State of Disaster Emergency gives the governor ostensibly temporary powers to bind the citizenry without legislative participation. While efficient in cases of true cataclysm—particularly when a legislature is unable to convene—such executive edicts do not benefit from the careful deliberation and democratic input of a full legislative process. Nor do the governor’s rules keep the law-passing separate from the law-executing—as the state constitution requires. Rather, he has now consolidated both powers in a way that enables him to target favored or disfavored businesses or industries (or, say, favor gatherings for social protest purposes, but disfavor gatherings for religious worship purposes).
One question worth asking is whether the emergency declaration was even necessary to fight the coronavirus effectively. Might compliance with new safety policies be higher—and thus enhance everyone’s safety—if those rules were adopted by a bipartisan legislature rather than dictated by one man? Other questions include whether the declared emergency is lawful and when will it end? On April 13, in the Friends of Danny DeVito v. Wolf case, the Pennsylvania Supreme Court turned away an earlier challenge to the governor’s emergency declaration, implying it would take a vote of the legislature to end the governor’s power grab.
Shockingly, on July 1, the Supreme Court backtracked. In Wolf v. Scarnati et al., it held 4-3 that a vote by both houses of the legislature counts for nothing. After hearing daily from constituents that the governor’s emergency lockdown orders are killing businesses they had built over decades and are destroying their livelihoods, legislators from both parties decided they had waited long enough. They voted via concurrent resolution on June 9 to end the governor’s emergency powers. The bipartisan vote in the state house was 121-81, including all Republicans and 12 Democrats in favor, and the vote in the state senate was 31-19, with all Republicans and 2 Democrats in favor. Together that is 60% of the legislature.
It makes perfect sense that a concurrent resolution could end the extraordinary emergency powers of a governor. Sometimes a legislature might not be in session when an emergency arises, or else it might not be able to meet in the early days of a crisis when quick and important decisions have to be made—such as quarantining sick people. But once the legislature assembles and passes a concurrent resolution, that is the strongest possible signal that the legislature is ready and able to resume its proper constitutional role as lawmaker.
But Pennsylvania’s story took a turn that few saw coming: once the legislature acted, Governor Wolf refused to relinquish his special powers and end the State of Disaster Emergency. It turns out the governor has gotten used to ordering people around without a legislature to get in his way—not unlike the tyrannical ruler Pennsylvania colonists overthrew once before during the American Revolution.
To be fair, the governor’s legal argument is superficially plausible. He contends that under Article III, Section 9 of the state constitution, the legislature has to present its concurrent resolution to him for his signature (as they would have to do with a piece of legislation). Under his theory, he can then veto the concurrent resolution and it would take a two-thirds vote in each house of the legislature to take away his emergency powers—which is about 6-7% more votes than the concurrent resolution got in either house.
The Supreme Court bought this argument, but does it make sense? Does the Pennsylvania Constitution really permit a governor to call a State of Disaster Emergency on his own accord and thereby sideline both houses of the legislature (that happen to be in the opposition party’s control) unless and until the governor decides to relinquish his power? Does the constitution really require a two-thirds majority in both houses—more votes than would be needed to impeach the governor and remove him from office entirely—just to bring the State of Disaster Emergency to an end?
In a word, no. The concurrent resolution is not a piece of legislation subject to Article III, Section 9’s “shall be presented to the governor” language because the resolution is not a legislative act. Besides, if the legislature cannot end the State of Disaster Emergency without going through the full legislative process of bicameralism (i.e., passage by both houses of the General Assembly) and presentment (i.e., governor’s approval), then why can the governor end the emergency without going through the full process too? Logically, the argument would have to run both ways.
Or if, like the Supreme Court, one does think of the concurrent resolution as an act of lawmaking, that renders unconstitutional the act under which states of emergency are now declared. Article II, Sec. 1 of the Pennsylvania Constitution states: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” In other words, the constitution vests the legislative power in the legislature—not in the governor.
So, if the statute under which the governor declared an emergency really allows him to enjoy legislative power that the legislature cannot take back without his permission, then that statute is unconstitutional. Sometimes called a ‘nondelegation doctrine’ the idea is that because the people have assigned or ‘vested’ the legislative power in the General Assembly, the legislature is not allowed to give the power up or ‘divest’ it to the governor. Even if the governor is all too willing to accept the power, it is not a power that the legislature is free to subdelegate. And here it is easy to see why. Treating the legislative power as delegable destroys the carefully wrought structure of a constitution that deliberately divides power across three branches. By ruling otherwise, the Supreme Court majority has botched this straightforward case.
Some might wonder, what is the problem with this new power arrangement? After all, Gov. Wolf is popular (for now) and maybe he is doing the right thing as a matter of public policy. But the folks whose livelihoods are being destroyed by Gov. Wolf’s diktats have a constitutional right not to be stripped of their civil liberties by a single government official. If the government is going to order a lockdown or other measure that destroys someone’s livelihood, that needs to be done with due process of law—in this case, the legislature’s approval.
Besides, the Founding Fathers distrusted accumulations of power. The state constitution separates powers precisely so that all three branches have to sign off before the government can bind a citizen with a criminal penalty or deprive a citizen of liberty. The governor and supreme court have disregarded that core constitutional concept. Benjamin Franklin must be spinning in his grave.
The Pennsylvania Supreme Court’s decision also deprives Pennsylvanians of something the U.S. Constitution guarantees them in Article IV, Sec. 4: “The United States shall guarantee to every State in this Union a Republican Form of Government[.]” While that provision is often thought of as one federal judges cannot adjudicate, Gov. Wolf may have created a counterexample. It is fairly easy to ascertain that he is not governing consistently with representative government when it comes to the State of Disaster Emergency. It makes a complete mockery of self-government, of voting rights, and of constitutional principles like ‘one person, one vote’ or ‘count every ballot’ when the supreme court disenfranchises the entire duly elected state legislature and coronates King Thomas I to rule like a monarch until—when? A vaccine is in place? He deigns to surrender power? His term ends?
The threat to life and health from Covid-19 will likely dissipate eventually. But the menace to livelihood and liberty from the supreme court’s precedent and the governor’s power grab will last until those actions are reversed. Even Gov. Wolf’s supporters should be wary of the example being set here for a future governor they distrust. Legislators and citizens in other states should draw a careful lesson about not drafting statutes that can be misconstrued to cede near-absolute power to governors of either party. As for Pennsylvanians who love liberty, they should heed the words of poet and suffragist Charlotte Perkins Gilman:
There’s a whining at the threshold—
There’s a scratching at the floor—
To work! To work! In Heaven’s name!
The wolf is at the door!