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Governor Wolf’s Shutdown Orders Survive the Supreme Court of Pennsylvania’s Scrutiny—Again
July 02, 2020
Pennsylvania Governor Tom Wolf has once again come away from the Supreme Court of Pennsylvania with his shutdown orders intact. In April, the Commonwealth’s highest court exercised its King’s Bench jurisdiction to deny a constitutional challenge brought by a political committee and several Pennsylvania businesses. And on the first day of July, the Supreme Court of Pennsylvania again exercised its King’s Bench jurisdiction to deny the General Assembly’s attempt to terminate Governor Wolf’s shutdown orders by a June 10 concurrent resolution.
 
The case, styled as The Honorable Tom Wolf v. Senator Joseph B. Scarnati, III, et al., No. 104 MM 2020 (Pa. July 1, 2020), primarily turned on whether the General Assembly was required to present the concurrent resolution to Governor Wolf for signature or veto. But the case also considered whether the General Assembly had reserved to itself the authority to suspend the laws, and whether the General Assembly had unconstitutionally delegated its powers when it passed the Emergency Management Services Code underpinning Governor Wolf’s shutdown orders.
 
A majority of the Court held that the concurrent resolution required presentment because it had legal effect. It rejected the Senate Republican Caucus’s argument, made in support of the General Assembly’s action, that presentment is required only when legislation commits the executive branch to take affirmative acts. “To distinguish between a resolution that requires the Governor to take affirmative action and a resolution that forbids him from enforcing the law would be to elevate form over substance and allow ‘the negative of the’ Governor to be ‘evaded by acts under the forms of resolutions.’” Id. at *15 (citation omitted). And because this meant presentment was a constitutional requirement, the Court held that the Emergency Management Services Code had to be read to require presentment of any concurrent resolution to Governor Wolf—even though the Court conceded that the General Assembly’s alternative interpretation was reasonable.
 
The Senate Republican Caucus’s remaining arguments fared no better. The Court’s majority held that the power to suspend laws in Article I, § 12 is a “negative check on executive power rather than an affirmative grant for the legislature to act without the Governor.” Id. at *29. And it likewise rejected the Senate Republican Caucus’s non-delegation argument, finding that, while broad, the Emergency Management Services Code contained enough checks on the executive’s discretion to pass constitutional muster.
 
Recognizing the passion around the Commonwealth’s response to the COVID-19 pandemic, the Court’s majority took great pains to emphasize that it was passing no judgment on the wisdom of that response. Its decision, it said, was based solely on the legal arguments before it. Even so, it seems naïve to think that the Court’s majority opinion will be the last word on the subject or that another challenge on this highly-contentious issue is not already brewing.
 
If you have any questions regarding this issue, please contact our COVID-19 Task Force.
 
Joseph V. Schaeffer
412.325.3303
jschaeffer@spilmanlaw.com