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Challenges to Shutdown Orders Reach the U.S. Supreme Court
April 28, 2020
On April 27, 2020, a group of petitioners asked the Supreme Court of the United States to stay the enforcement of Pennsylvania Governor Tom Wolf’s March 19, 2020, executive order that closed many of the Commonwealth’s businesses. The case Friends of Danny DeVito et al. v. Wolf et al., No. 19A1032, reaches the Supreme Court from the Supreme Court of Pennsylvania, where the petitioners’ King’s Bench petition was denied on April 13, 2020.
Of the challenges raised in the King’s Bench petition, only four present questions under federal law may be taken up by the U.S. Supreme Court:
  1. Takings under the Fifth Amendment,
  2. Procedural due process under the Fourteenth Amendment,
  3. Equal protection under the Fourteenth Amendment, and
  4. Free speech and assembly under the First Amendment.
And though all of these are referenced in the application for stay, the petitioners appear focused on the economic impacts underlying their takings claims.
We have elsewhere noted the early setbacks experienced by plaintiffs challenging government shutdown orders, and we are skeptical that this application (and the petition to follow) will meet with success: the injunctive relief that the petitioners sought in the Pennsylvania Supreme Court is generally not available in takings claims and, as the Commonwealth prepares to open back up, may shortly become moot. Nevertheless, courts in Illinois and Virginia recently have limited those states’ shutdown orders, and we can imagine a variety of colorable constitutional claims depending on specific facts. The only sure prediction at this juncture is that impacted citizens and businesses will continue to demand relief against the government orders that have upended their lives and livelihoods.
Spilman’s COVID-19 Task Force is closely monitoring these developments, and its members are available to assist with any shutdown-related issues.