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Governor Wolf’s COVID-19 Orders Fall Under Constitutional Challenge
September 16, 2020
Since March, Pennsylvania Governor Tom Wolf and his administration have responded to the COVID-19 pandemic by imposing some of the strictest limitations in the country on the Commonwealth’s residents and businesses. Now, a federal district court judge has upended some of the most controversial limitations, focusing on mass-gathering restrictions and business operations, holding that they violate guarantees to freedom of association, substantive due process, and equal protection under the United States Constitution. Here are the key takeaways from the district court’s opinion.
  • The four Pennsylvania counties to join the lawsuit—Butler, Fayette, Greene, and Washington—were dismissed because they cannot sue the Commonwealth, which created them. A set of political and business plaintiffs, however, remained to prosecute the constitutional claims.
  • The highly deferential standard of review from Jacobson v. Massachusetts, 197 U.S. 11 (1905) was rejected in favor of the modern triad that that applies a forgiving rational basis standard, a middle-of-the-road intermediate scrutiny standard, or an exacting strict scrutiny standard—all depending on the type of constitutional right or state action implicated by the plaintiffs’ claims.
  • The mass-gathering restrictions failed intermediate scrutiny under the First Amendment because they are not narrowly tailored. The Wolf Administration set hard-and-fast caps for some gatherings, while setting proportional caps based on occupancies for others. Additionally, the experience from recent large protests failed to show that mass gatherings were responsible for super-spreader events.
  • The stay-at-home restrictions failed both strict and intermediate scrutiny under the substantive due process principles incorporated into the Fourteenth Amendment. By making confinement the default position, the Wolf Administration’s stay-at-home orders were not narrowly tailored and were not comparable to quarantine orders in which both scope and duration are limited.
  • The business closure orders failed rational basis review under the substantive due process principles incorporated into the Fourteenth Amendment. The Wolf Administration had no set policy for distinguishing life-sustaining businesses, which were permitted to stay open, from non-life-sustaining business, which were required to close. The Wolf Administration likewise had no set criteria for processing waivers, relying again on essentially ad hoc, evolving judgments. Moreover, many non-life-sustaining businesses sold the same products or performed the same services as life-sustaining businesses—with the benefit of the authority to remain open often going to big-box retailers rather than small businesses.
  • The business closure orders also failed rational basis review under the equal protection principles incorporated into the Fourteenth Amendment. Large retailers, such as Walmart and Lowes, were permitted to remain open as life-sustaining businesses, while their smaller competitors, such as local appliance retailers, were required to close as non-essential businesses. This had the effect of directing consumers to larger businesses, where they would encounter more people, and therefore did not rationally relate to the stated purpose of limiting person-to-person interactions.
So what does this mean? And what happens now? Those questions are hard to answer, in part because some of the limitations overturned by the district court have been suspended or superseded. As a general matter, though, it seems safe to say that the Wolf Administration cannot enforce its mass-gathering, stay-at-home, or business-closure orders in their current form: a more narrowly tailored approach is required. But this also presupposes that the Wolf Administration will not appeal (it says that it will), that a stay will not be issued pending appeal (it might), and that the Third Circuit Court of Appeals will not reverse (it also might). As those appellate remedies play out, however, the district court’s opinion will no doubt influence prospective public health measures taken by the Wolf Administration and other governments across the country.


On September 16, 2020, the Wolf Administration asked the district court to immediately certify its order for appeal, as well as to preserve the Commonwealth’s mass-gathering limitations pending any such appeal.

If you have any questions, please contact our COVID-19 Task Force.