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.