Pa. courts may avoid definitive ruling in legal fight over governor’s emergency powers

While both governor and legislature want quick action, judiciary likely to proceed deliberately

  • Benjamin Pontz

Courtesy PA Senate Republican Caucus

A screenshot of a Pa. Senate GOP livestream shows Majority Leader Jake Corman (foreground) and Senate President Pro Tem Joe Scarnati discussing a newly passed budget bill on May 28, 2020.

It took less than 24 hours for the Pennsylvania General Assembly and governor to wind up in a legal fight that could have far-reaching implications for how state leaders respond to future emergencies.

First, the state Senate debated and passed a resolution to revoke the emergency order Gov. Tom Wolf issued in March in response to the coronavirus epidemic. In a matter of hours, the House concurred with the Senate’s resolution, and legislators said their action did not require Wolf’s assent.

Then, in a 1 p.m. news conference on Wednesday, Wolf threatened to take the legislators to court over the matter, but before he could do that the legislature sued Wolf in Commonwealth Court.

Both the governor and the legislature say they want the court to resolve the matter, which has been the source of consternation for weeks, once and for all.

But according to two legal scholars, the court may not be in any rush to do so, at least not in any definitive way.

“Courts can avoid taking an affirmative stance on thorny, highly politicized cases by dismissing them on procedural grounds, and that may certainly happen here,” said Dr. Scott Boddery, a political science professor at Gettysburg College who studies court legitimacy and judicial behavior.

In the lawsuit filed Wednesday afternoon, Senate GOP leaders Joe Scarnati (R-Jefferson) and Jake Corman (R-Centre) asked the court to direct Wolf to issue a proclamation ending his coronavirus disaster declaration, which, they say, he is required to do under Title 35 of the state code.

While Wolf maintains that all resolutions passed by the legislature require his signature under the state constitution, the senators argued in their filing that the statute says otherwise.

Scarnati and Corman pointed to the language of an April ruling by the state supreme court that upheld the governor’s emergency powers as evidence that the commonwealth’s highest court would side with them.

“We note that the Emergency Code temporarily limits the Executive Order to ninety days unless renewed and provides the General Assembly with the ability to terminate the order at any time,” the state supreme court ruled in the Friends of Danny DeVito case.

“A reading of Section 7301(c) requiring the Governor to review and approve a concurrent resolution would render the ‘at any time language’ meaningless and superfluous, because, in fact, the General Assembly could not end a state of disaster emergency at all, let alone at the time of its choosing,” the senators argued.

Duquesne University Professor of Law Bruce Ledewitz, who teaches classes on the Pennsylvania Constitution, said the senators’ argument is fundamentally sound and that one would have to read text into the statute that is not already there to reach the governor’s conclusion that his assent is required.

“That’s not the most natural reading of the statute,” Ledewitz said, referring to the idea that the legislature must present the resolution to the governor for his approval. “The statute is silent on presentment … the most natural reading is that it is a check by the legislature on the governor. It plainly was written so that the legislature could terminate an emergency declaration by a governor, even if the governor disagreed. I mean, it’s the only way you can read it.”

But that is not the end of the story, Ledewitz said.

Wolf may be right that the statute itself is unconstitutional by allowing the legislature to take action by concurrent resolution without the governor’s signature. But if that’s the case, the entire statute granting the governor emergency powers in the first place could come crashing down. It would raise a question of severability — whether an unconstitutional part of a statute means that the entire statute is unconstitutional, or whether what the legislature hoped to achieve with the law can be accomplished without the unconstitutional provision.

Here, Ledewitz said, the legislature obviously intended to have a check on the governor.

“As a legal matter, I think that the provision of the check is not severable,” said Ledewitz. “I think the legislature would have written the statute very differently if they could not control the governor. I don’t think they would have given him all these powers if they couldn’t have some way of ending it, so I think it’s at the heart of the statute.”

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But the court will likely be reluctant to strike down the entirety of the statute given the dramatic consequences of that action, which would effectively eliminate all of the governor’s emergency powers.

“As a practical matter, I think a court would find it severable,” said Ledewitz. “And the reason is, because otherwise, it would be open season — there would be no authority for the governor, to issue any orders at all, to deal with a pandemic.”

Either way, this is not a slam dunk case in court because the remedy that the legislators seek — a court order for the governor to issue a proclamation — could create a separate separation of powers issue, since it would mean the judiciary ordering the executive branch to take action. There is some legal precedent on that issue, Ledewitz said, but it remains unclear whether a court would be willing to take that step.

Pennsylvania is one of a small number of states that elects its judges via partisan elections, and Boddery suggested it would be naive to think that political views won’t come into play.

“With each side of the debate having at least some legal footing, and with this issue becoming increasingly politicized, the conditions are ripe for the Commonwealth Court judges to take a position that will signal to their voting base,” he said.

If the court wants to keep its reputation as a neutral arbiter of law rather than a political branch, it would be wise either to avoid a ruling along party lines or to dismiss the case as a political question, said Boddery.

Ledewitz said that although the state Supreme Court has a 5-2 Democratic majority, he cannot imagine it would rule along party lines.

“The Pennsylvania Supreme Court’s been really, really good about this,” said Ledewitz. “They’re not going to decide anything 5-2 on the pandemic.”

For now, though, the issue is in the Commonwealth Court, and, before any hearings, the governor will have a chance to respond. When Wolf announced earlier today that he intended to take the legislature to court, he said he hoped the court would move quickly.

“Any court hearing a challenge would recognize the need to deliver a prompt decision on such a dispute,” said Gregory Schwab, the governor’s counsel.

Lyndsay Kensinger, the governor’s press secretary, declined to comment on the Republican filing and pointed to the governor’s remarks earlier in the day. Wolf must respond to the filing within 30 days.

Ledewitz predicted the court will move deliberately.

“I think Commonwealth Court may not be in a big hurry to decide this, which might be just fine for everyone.”

Separately, the state Senate passed Wednesday an amendment 44-6 that would require legislative assent to a disaster declaration lasting longer than 30 days. It will now head to the House for consideration. It would need to be passed in consecutive legislative sessions and then be approved by voters to take effect.

» PA Post is an independent newsroom covering policy and government in Pennsylvania. For more, go to www.papost.org.

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