Economic Liberties

Pennsylvania’s Highest Court Upholds Gov. Wolf’s Orders Requiring Certain Businesses to Shut Down Amid Global Pandemic

Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020).

Written By: Devan McCarrie

Tom Wolf, the Governor of Pennsylvania, issued a series of executive orders in response to the novel coronavirus, by using his broad emergency powers to act for the general health and welfare of the citizens of Pennsylvania.  The executive orders deemed the virus a “disaster emergency” pursuant to the Governor’s statutory authority.[1]  Using this authority, the Governor divided Pennsylvania businesses into two categories: life-sustaining or non-life sustaining.  All life-sustaining or “essential” businesses were permitted to stay open, but all non-life sustaining or “nonessential” businesses were ordered to close immediately to prevent the spread of COVID-19.  Nonessential businesses that failed to comply with the order were subject to criminal prosecution.  Nonessential businesses were given the opportunity to file a waiver requesting a change in status.  However, they had to remain closed until the waiver was reviewed by the State.  

Multiple Petitioners joined in a case before the Pennsylvania Supreme Court accusing Wolf’s orders of various constitutional violations.  Danny DeVito, a candidate for a state legislative seat, complained that he was forced to shutter his campaign office whereas his opponent, incumbent Rep. Anita Kulik, was allowed to keep her office open.  Another Petitioner, Kathy Gregory, a licensed real estate agent in Northampton County, was unable to use her office because the real estate company, which owned the office, closed it and would not apply for the waiver.  The third Petitioner, Blueberry Hills Golf Course and Lounge, owned a public golf course and restaurant located in Warren County.  Blueberry Hills alleged that due to its status as nonessential, it was in danger of permanent closure.  Blueberry Hills claimed that it was competing with Ohio golf courses across the state line that were allowed to stay open if they followed CDC guidelines.  Blueberry Hills requested that they should be permitted to do the same.  All Petitioners claimed that the Executive Orders placed businesses throughout Pennsylvania in extreme risk of financial hardship and threatened the jobs of hundreds of thousands of citizens. 

The Governor is granted broad emergency powers to protect the public safety and welfare of the people throughout the Commonwealth.  The Governor has ninety days to react to impending emergencies and then he either must renew the Executive Order or end the emergency.  A check on this broad power is that the General Assembly may terminate the emergency at any time. (For a limitation on this legislative check, see Louis Wechter’s summary of Gov. Wolf v. Senator Scarnati III in section on “Separation of Powers”).  The Court determined that the Governor’s reaction to COVID-19 was within his broad statutory powers to promote heath, morals, or safety and the general well-being of the community.  Petitioners did not challenge these powers but rather challenged their applicability to a viral infection like COVID-19.  The Supreme Court of Pennsylvania found COVID-19 within the “catch all” catastrophe category in the statute and believed it aligned with the intent of the General Assembly.[2]

Petitioners raised five constitutional challenges to the Executive Order as well.  First, they claimed that the Governor was acting outside of his authority.  However, as explained, in times of emergency the Governor has broad statutory power.  Second, Petitioners attempted a Fifth Amendment Takings argument, claiming that the order prohibited them from using their property “at all” and they were not justly compensated.  However, the Supreme Court found that a taking had not occurred because it was only a temporary loss of use of the business.  The Dissent disagreed and argued that for some of these businesses, a temporary closure will turn into a permanent closure.  Petitioners next contended that they had been deprived of procedural due process.  They made this claim by asserting that the distinction between essential and nonessential businesses took effect without providing notice or opportunity to be heard with respect to their placement on the list.  However, the Court found that the nature of the virus required the Governor to act quickly and therefore he was not in a position to offer pre-deprivation notice and opportunity.  The Court found the waiver process sufficient because it gave all businesses the opportunity to change the classification of their business, even if it was after the designation.  The Court also rejected Danny DeVito’s Equal Protection argument that his incumbent competitor was able to use her elective state office to run her campaign when he was not able to use his campaign office.  The Court observed that all candidate’s offices must be closed and there are specific rules prohibiting state officials from campaigning from their public office.  Additionally, the Court rejected Blueberry Hill’s contention that it was being unfairly treated because municipal golf courses are able to stay open but public courses are required to close.  The Court explained that the municipal courses are able to stay open because of local rules, not their status on the life-sustaining businesses list.  Lastly, Petitioners argued that their First Amendment rights were violated because they are not able to assemble and engage in free speech and advocacy.  Constitutional rights to free speech and assembly are not absolute, and states may place content-neutral time, place, and manner regulations on speech and assembly “so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-7 (1986). The Court found that there is no question that the containment and suppression of COVID-19 and the sickness and death it causes is a substantial governmental interest. 


[1] 35 Pa. C.S. § 7301(c); 35 Pa. C.S. § 7301(a); 35 Pa. C.S. § 7301(f); 35 Pa. C.S. § 7301(b).

[2]“Any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering, or possible loss of life.” 35 Pa. C.S. § 7102. 


Pennsylvania Supreme Court Rules That State Legislature Must Consult Governor Wolf Before Lifting Disaster Emergency Order

Wolf v. Scarnati, No. 104 MM, 2020 WL 3567269 (Pa. July 1, 2020).

Written by: Louis Wechter

As the COVID-19 pandemic continued to rage on with no foreseeable end, the Pennsylvania Supreme Court was forced to mediate a dispute between the state governor and legislature over which branch had the authority to control the response to the virus. The Court’s opinion was written in response to a suit brought by Governor Tom Wolf against Senators Scarnati and the Senate Republican Caucus. The suit challenged the idea that the General Assembly may terminate the Governor’s Proclamation of Disaster Emergency by passing a resolution that is not submitted to the Governor for his approval or veto. 

On March 6, 2020, in response to rising COVID-19 cases, Governor Wolf issued a Proclamation of Disaster Emergency pursuant to a valid provision of the Emergency Management Services Code. This provision grants the Governor the power to publicly declare a state of disaster emergency if he/she believes a disaster has occurred or imminently will occur. The Governor can similarly decide when to lift the state of emergency after the disaster has passed. At the same time, however, the provision also seems to give the General Assembly power to unilaterally end a state of emergency. The provision reads, “The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.”

Governor’s Wolf’s executive order, issued in response to the coronavirus, has had a dramatic effect on the lives of Pennsylvanians, especially on those businesses that were classified as non-essential and forced to shut down. A group of Pennsylvania citizens challenged the Governor’s order, alleging violations of the Emergency Management Services Code and Pennsylvania Constitution. On April 13, 2020, the Pennsylvania Supreme Court ruled that the Governor’s order conformed to the statute and state Constitution. Subsequently, on June 3, 2020, Governor Wolf renewed the Emergency Proclamation for an additional ninety days.

The Pennsylvania Senate and Pennsylvania House of Representatives reacted to the Governor’s extension of the Emergency Proclamation by passing a concurrent resolution ordering Governor Wolf to terminate the state of disaster emergency. The Senators then petitioned the Pennsylvania Commonwealth Court to enforce the resolution. Governor Wolf subsequently filed an action on June 17, 2020, pleading for a stay of the Commonwealth Court proceeding. The Pennsylvania Supreme Court granted the stay, which eventually led to the Court issuing the current opinion.

The Court began its opinion by exploring the text of the State’s Constitution. The Court first noted that the Pennsylvania Commonwealth Constitution is clear that a concurrent resolution must be presented to the Governor before it takes effect, unless it meets a specific exception. The Court specifically noted that a concurrent resolution with “the effect of legislating” must be presented to the Governor for approval or veto. The Senators contended that their resolution was not subject to presentment because it was simply a “declaration of fact” with no legal implication. Additionally, the Senators argued that their resolution used no public funds and did not subject the state to an affirmative act. In rejecting these arguments, the Supreme Court reasoned that the concurrent resolution would alter the suspension of state regulations, affecting both economic activity and healthcare, and consequently would have immense legal consequences. Thus, the Senators’ resolution does not fit into an exception to the presentment rule and was not effective until it was brought to the Governor for veto or approval. By contrast, the dissenting opinion claimed that the emergency circumstances of the pandemic should allow the legislature to enact a legal policy without consulting the Governor.

After establishing that the concurrent resolution does not fit into an exception to the presentment requirement, the Pennsylvania Supreme Court considered whether the language of the Emergency Management Services Code supported the Senators’ position. The Court found that the statute largely entrusted the Governor with the power to respond to emergencies. This power can be checked only by a two-thirds vote in both legislative chambers to override a veto. This balance prevents one branch from dominating the others. The Court explained that the language of the statute is clear, and that the provisions under review heavily emulate the values held at the core of our national Constitution. The Court concluded by reminding us that the legislature does not have the power to act unilaterally, just as the King may not use regal authority to pass laws without the consent of Parliament.


Florida Food Industry Worker Brings Action Against Governor After Being Laid Off

Henry v. Desantis, 2020 WL 2479447 Case No. 20-cv-80729-SINGHAL (S.D. Fla. May 14, 2020).

Written By: Uri Simms

On May 14, 2020, the United States District Court of the Southern District of Florida dismissed a lawsuit against Florida Governor Ronald Desantis that was filed by Debra Henry, a food industry worker who lost two jobs as a result of the Governor’s orders shutting down bars and restaurants to slow the spread of the coronavirus. On March 17, 2020, Governor Desantis issued Executive Order 20-68, which restricted occupancies to 50% of normal business operations. The same say the order was issued, Henry was laid from two jobs where she had worked for the past three years. Three days later, on March 20, 2020, Governor Desantis issued Executive Order No. 20-71, which forbade bars and restaurants from offering food and beverages to consumers on site. Henry claimed that the Governor acted beyond his authority and violated her constitutional rights by issuing these orders. The court dismissed Henry’s lawsuit with prejudice, holding that she was unable to identify a constitutional right that had been violated by the Governor’s response to the global health crisis.

The Court held that the Governor’s response to the Covid-19 pandemic had not violated any of Henry’s constitutional rights, including the rights of free speech or association under the First Amendment or right to equal protection of the law under the Fourteenth Amendment. The Court further held that there was no causal connection between the Governor’s orders and Henry being laid off. The court determined that the Governor’s actions restricting food industry services furthered a legitimate government interest and the decision to lay off workers was completely up to the employer.


District Court of Maine Finds Governor’s 14-Day Quarantine Restrictions Constitutional as Businesses Across the State Prepare to Shutter to Out-Of-Staters Ahead of Busy Summer Months

Bayley’s Campground Inc. v. Mills, No. 2:20-CV-00176-LEW, 2020 WL 2791797 (D. Me. May 29, 2020).

Written By: Devan McCarrie

The Governor of Maine issued a slew of executive orders designed to slow the rate of COVID-19 in Maine.  One order required that out-of-state people, unless they own or can rent property in Maine where they can quarantine for 14 days, cannot find shelter within the Pine Tree State.  The Governor is allowing hotels, inns, and campgrounds to stay open but only to the public that have already completed a 14-day quarantine inside of Maine.  A group of in-state and out-of-state businesses and individuals brought suit contending that the Governor could not impose restrictions that deprived “non-Mainers” of their fundamental right to travel and participate in commerce available to Mainers.  This action was brought and decided earlier this spring before the State’s tourist season was set to kick off in full swing. 

Plaintiffs contended that the 14-day quarantine restriction was unconstitutional because it deprived all citizens of a fundamental freedom without due process of law and violated equal protection because it arbitrarily discriminated in favor of businesses in rural counties.  They sought to (1) lift the band 14-day quarantine for those entering Maine, (2) lift the “ban” on all travel from certain locations in the US, and (3) lift the prohibition that prevented campgrounds to open to out-of-state visitors until they self-quarantined. 

Plaintiffs first contended that their claims should receive “strict scrutiny” because the fundamental right to travel is being infringed.  In order to stand, the 14-day quarantine rule must be motivated by a compelling state interest and must also be narrowly tailored to serve the government’s interest.  They further claimed that the quarantine restriction was not the least restrictive means of controlling the pandemic. 

The right to travel had been defined to contain three components, two of which were at issue in the case.  First, the “right of a citizen of one State to enter and to leave another State” and “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.” Saenz v. Roe, 526 U.S. 489 (1999).  The Court found that these rights required a compelling justification since “[f]reedom to travel throughout the US has long been recognized as a basic right under the Constitution.” Dunn v. Blumstein, 405 U.S. 330, 338 (1972). 

“The Constitution was framed under the dominion of a political philosophy less parochial in range.  It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Baldwin v. Seelig, 314 U.S. 160 (1941).

However, the Court went on to explain that at the current stage of the pandemic, it was unclear if there were any other less restrictive means for the state to meet its goal of curbing COVID-19. 

On the second count, the Court also found that the Plaintiffs would likely fail to succeed on their procedural due process claim.  Plaintiffs alleged that they had “no opportunity to challenge the basis for their quarantine, nor to exercise their rights without threat of criminal penalty.”  Penalties ranged from fines to jail time.  They argued that they were deprived of their liberty without due process, specifically, without any pre- or post-deprivation process.  However, as explained in many cases of this nature regarding COVID-19, emergency situations require an immediate response and quick action by the State. 

The Court concluded that given the nature of the COVID-19 pandemic and “the threat posed by modern-day traveling public inclined to migrate to Maine in numbers as high as 20 million over the course of a couple of months,” the Governor had not exceeded her powers.

As of June 9, 2020, Plaintiffs have filed for an appeal of this decision to the United States Court of Appeals for the First Circuit.


U.S. District Court of Maryland Rejects Claims Against Governor Hogan For Constitutional Violations

Antietam Battlefield KOA v. Hogan, Civil Action No. CCB-20-1120 (D. Md. 2020)

Written By: Uri Simms

On May 5th, 2020, the United States District Court of Maryland rejected a host of claims by several plaintiffs including state delegates, army veterans, religious leaders, an amusement park, and a 22,000 member organization seeking redress against Governor Larry Hogan for a plenary of constitutional violations resulting from a series of executive orders enacted between March 5th – March 30th, 2020. In the wake of the Covid-19 pandemic, Governor Hogan executed a series of measures aimed at slowing the spread of the deadly virus. Amongst other actions the Governor’s orders: precluded gatherings of more than 10 people; limited religious congregations to operate at only 50% capacity for indoor services; and required individuals to wear a mask or face covering or be subject to misdemeanor charges, which could result in a penalty of imprisonment for up to one year, a fine of up to $5,000, or both. Although the policies enacted by the Governor were amended after the plaintiffs’ complaint was filed and life for the plaintiffs began to resemble what they sought from a favorable ruling, the Court nevertheless decided to proceed with an analysis of the constitutionality of the Governor’s orders because of the possibility that the more restrictive measures could be reenacted.

The District Court denied the plaintiffs’ motion for injunctive religion, concluding that the plaintiffs had failed to show a likelihood of success that any harm to them resulted from a constitutional violation. The Court relied heavily on Title 14 of the Maryland Code for Public Safety, Section 14-3A-03, a statute which grants Governor Hogan the power “to order evacuation, closing, or decontamination of any facility, and to order individuals to remain indoors or refrain from congregating.” The Court determined that the Governor had a compelling interest in slowing the spread of Covid-19 and had the power to do so by utilizing the state’s police power to regulate businesses within the state of Maryland,

In cases where plaintiffs allege violations of freedom of speech, assembly, or the free exercise of religion due to government responses to the coronavirus, courts typically defer to the public health decisions made by elected officials. Courts find support for this deferential approach in the Supreme Court’s 1905 decision of  Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which upheld the authority of a state to enforce compulsory vaccinations to curtail the spread of smallpox. As Justice Harlan explained in the majority opinion, “The court’s role is not to usurp the functions of another branch of government in deciding how to best protect public health, as long as the measures are not arbitrary or unreasonable.”   Following Jacobson’s principle of deference, lower courts are unlikely to invalidate government orders aimed at preventing the spread of a deadly disease, just as the Court did in this case.


United States District Court Denies Waterpark’s Temporary Restraining Order

Slidewaters, LLC v. Washington Department of Labor and Industries: 2020 WL 3130295 (E.D.Wash. 2020).

Written by: Robert Pallein

On June 12, 2020, Chief United States District Judge Thomas Rice denied plaintiff Slidewaters’, LLC’s (Slidewaters) Motion for a Temporary Restraining Order (TRO) against defendant Washington Department of Labor and Industries (Washington LNI). Although Judge Rice denied the plaintiff’s motion, he was sympathetic towards Slidewaters’ plight. LNI had issued an order that had forced Plaintiff to close its waterpark and suffer severe economic loss.

Slidewaters is a family-owned waterpark that is operated by cousins Burke and Robert Bordner in Chelan County, Washington. The business makes almost all its income between the Saturday prior to Memorial Day weekend and Labor Day. During this approximate 100-day window, Slidewaters generates enough income to cover its expenses for the entire year. 

On February 29, 2020, Defendant Governor Jay Inslee proclaimed a State of Emergency for all counties in Washington. Proclamation 20.05 declared the COVID-19 pandemic a “public disaster.” Pursuant to the Governor’s order, on May 26, 2020, Washington LNI filed an emergency rule that required all businesses prohibited by the emergency proclamation, including plaintiff’s waterpark, to suspend operations. Violators of this rule would first be reprimanded and, if they did not close or adjust their operations as required, they would receive a citation of $10,000 or more.

In seeking a TRO to enjoin application of the LNI rule to Slidewaters, plaintiff had three main arguments: Governor Inslee did not have the authority to issue the emergency proclamations at issue; LNI did not have the authority to issue an emergency rule based on the Governor’s unlawful emergency proclamations; and plaintiff’s substantive due process rights were violated under the U.S. Constitution and the Washington State Constitution. Plaintiff was required to demonstrate “a likelihood of success on the merits; a likelihood of irreparable injury in the absence of preliminary relief; that a balancing of the hardships weigh in plaintiff’s favor; and that a preliminary injunction will advance the public interest.” Alternatively, the Ninth Circuit would issue an injunction based on a “sliding scale” if there were “serious questions going to the merits” and “the balance of hardships tip[ped] in the plaintiff’s favor,” assuming the plaintiff could satisfy the other two factors.

The Court rejected plaintiff’s first argument that Governor Inslee lacked authority to issue the proclamations. Washington law allows for a governor to call for a State of Emergency “after finding that a public disorder, disaster, energy emergency, or riot exists within this state or any part thereof which affects life, health, property, or the public peace.” The term “public disorder” is not defined in the statute so the Court looked to the Oxford English Dictionary, which defined “disorder” as “a disturbance of the bodily (or mental) functions; an ailment, disease.” Implementing a plain understanding of the dictionary definition to Washington law, the Court concluded that Governor Inslee did have authority to proclaim a State of Emergency because the coronavirus pandemic constituted a “public disorder.” With this authority, Governor Inslee had the ability to enforce public health rules related to a pandemic.

Next, the Court rejected Plaintiff’s argument that LNI exceeded its rulemaking authority by promulgating a rule in reliance of Governor Inslee’s Proclamations. The Court concluded that LNI did not promulgate a rule “pursuant to a proclamation by the governor.” Instead, the emergency rule merely referenced the Proclamation as an explanation for why the emergency rule was effective.

Plaintiff further argued that the Proclamations and emergency rule infringed on their substantive due process right to pursue a common calling and to use and dispose of private property. The Court relied on a 1905 Supreme Court case, Jacobson v. Massachusetts, which ruled that state governments have the authority to enact “quarantine laws and ‘health laws of every description’” pursuant to their police powers. So long as the public health law is reasonable and not overbroad or unequally applied, then the law is permissible, even if it infringed on other protected interests. Looking at all of plaintiff’s arguments, the Court found that the plaintiff failed to raise a serious question going to the merits of their claim.

The Court found that plaintiff is likely to suffer irreparable injury because the business is at risk of monetary losses and could face closure. However, while this would be sufficient to satisfy this requirement, a court cannot grant a TRO based solely on this one factor.

Lastly, when the government is a party in an injunction claim, the factors of equity balancing and public interest merge. “In exercising their discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Further, the Court will not grant injunctive relief unless public interests in favor of granting the injunction “outweigh other public interests that cut in favor of not issuing an injunction.” The Court sided with defendants, who had demonstrated the public health risk posed by COVID-19, a disease which has serious symptoms that can be fatal and which can spread among people who do not know that they are infected. The Court noted the limited knowledge of the disease and the need to restrict in person gatherings to slow transmission of the disease. The Court closed its opinion by saying “it is not the Court’s role to second-guess the reasoned public health decisions of other branches of government.”


Hairstylists and Barbers in California challenged the Governor’s Stay at Home Orders and their “Non-Essential” Classification

Professional Beauty Federation of California v. Newsom, No. 2:20-CV-04275, 2020 WL 3056126 (C.D. Cal. June 8, 2020).

 Written by: Devan McCarrie

The Professional Beauty Federation of California (“PBFC”) joined in a lawsuit with other cosmetologists, salons, and beauty schools in California that challenged the constitutionality of the Governor’s “Stay at Home” orders in response to COVID-19 pandemic.  Plaintiffs also contested the “Essential Critical Infrastructure Workers” list that was implemented by California Public Health Officer by claiming that it was arbitrary and “created for the sole purpose of allowing Defendant’s politically preferred trades and industries to continue to operate while secondary interests [were] left in economic distress.”  Since filing this motion, the State has issued guidance allowing hair salons and barbershops to reopen in greenlit counties.  Before addressing the constitutional claims, the Court considered whether this update rendered the plaintiffs’ claim moot. A case is rendered moot when there is no longer an actual controversy between adverse litigants, a requirement of Article III of the U.S. Constitution.  Plaintiffs argued, and the Court agreed, that their claims were still alive because only some counties had allowed licensed hair stylists and barbers to return to work.  Furthermore, PBFC had members in all counties and beauty schools and nail salons were still not permitted to open. 

The plaintiffs sought a preliminary injunction to enjoin Defendants from enforcing their COVID-19 response provisions.  However, all seven plaintiffs’ claims failed to pass constitutional muster. First, plaintiffs brought both procedural and substantive due process claims.  They argued that the defendants had deprived them of procedures, required by the California Business and Professions Code, relating to the revocation or suspension of their cosmetology licenses.  The Court quickly concluded that this was not the case, distinguishing between revoking the plaintiffs’ licenses and merely temporarily suspending the use of their licenses, which was happening here.  The Court said that the latter was not a procedural due process violation.  Next, the plaintiffs argued that the State’s orders should be subject to strict scrutiny because the orders infringed on the plaintiffs’ fundamental rights.  The Court rejected this argument. It held that the right to work is not a fundamental right and that laws affecting this right are subject to only rational basis review.  Since the Stay at Home Order had a legitimate purpose and the State’s distinctions between essential and non-essential businesses were reasonable, the Court found the order constitutional.  The Court similarly rejected the plaintiffs’ equal protection claim using a rational basis analysis because the State’s order did not implicate a suspect class or fundamental right.  The Court rejected the plaintiffs’ Fifth Amendment Takings claim – that the State order had deprived their property of all economically beneficial or productive uses – because the plaintiffs were seeking injunctive relief, which is not the proper remedy for a taking.  Plaintiffs also baldly asserted that their Eighth Amendment rights were violated but forwarded no arguments in support of this assertion.  Finally, Plaintiffs’ additional claims were barred by the Eleventh Amendment because they were challenging the California Constitution and the present lawsuit was filed in a federal district court in California.  The Supreme Court has held that a federal court may not grant relief against state officials on the basis of state law.  Pennhurst State Sch.& Hosp. v. Halderman, 465 U.S. 89, 106 (1984). For the foregoing reasons, the Court denied plaintiffs’ motion for injunctive relief.