State legislators want a guaranteed opportunity to defend laws against court challenges

(Patrick Feller/Flickr)

A bill that makes it easier for lawmakers to jump into contentious legal fights has raised separation of power concerns among some elected officials and experts. 

The bill, which passed the House in May on a near-party line vote, would let leadership in the General Assembly grant lawmakers standing in court to defend the constitutionality of laws — a decision usually handled by a judge.

Lawsuits from outside groups in the last year resulted in the redrawing of the state’s congressional map and the reinstatement of an axed welfare program.

“As the makers of the laws being challenged, it is only right the House, Senate or both have the opportunity to serve as parties in proceedings when a bill is alleged to be unconstitutional,” the bill’s sponsor Rep. Torren Ecker, R-Adams, said in a statement.

House Majority Leader Bryan Cutler, R-Lancaster, added to the Capital-Star that “the General Assembly has the right to defend what the thought process was that led to [the law], and the policy reason why those decisions were made.”

But the measure is confounding some lawmakers including Rep. Mike Zabel, a first-year Democrat from Delaware County and a lawyer by trade, who thinks the bill takes away executive prerogative.

“Do I think it’s the most disastrous bill in the world? No,” Zabel said. But, he added, it could overcomplicate the legislative and legal process.

Currently, judges decide who can intervene in a case and usually give legislatures their day in court, according to Michael Li, senior counsel at New York University’s Brennan Center for Justice.

Courts allow additional parties, such as legislatures, to intervene when there is a new argument that the current defendants aren’t making, Li said. Usually, the request is granted.

To Li, Ecker’s bill seems like a “solution in search of a problem,” and is “a little strange, more than insidious.” He noted while other states have passed similar laws, Pennsylvania’s is one of the broadest he’s seen. 

Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania, said the bill seems to chip away at precedent — that the executive branch defends legislation in court.

“If it were a federal law, there might be some problems with it under the federal Constitution — it’s not at all clear that Congress can confer standing on itself,” he said in an email. Roosevelt added that he couldn’t speak specifically to Pennsylvania’s own Constitution.

At the moment, the Women’s Law Project is challenging a decades-old law that prohibits the use of state Medicaid dollars to pay for abortions. The case, brought in January, is before Commonwealth Court.

Ecker’s legislation is retroactive, meaning the law could be applied to suits brought earlier this year. That would include the abortion financing case. 

Mike Straub, a spokesperson for Cutler, said in an email that the bill has no relationship to any specific lawsuit or ruling.

In 1985, the state Supreme Court ruled against a similar suit aimed at freeing Medicaid dollars for abortions. But attorneys from the Women’s Law Project, representing state abortion providers, are hopeful that more recent interpretations of state law could mean a new verdict.

“Our concept of gender equality has evolved significantly in the days since this ban was first upheld,” Sue Frietsche, lead lawyer on the suit, told Billy Penn in January. “Now we understand gender equality in a much different way.”

Lawyers for the Department of Human Services argued for dismissal on technical grounds in an April court filing.

The department’s counsel also pointed to a letter of advisement from state Attorney General Josh Shapiro’s office that says the 1985 ruling “is directly on point here and is still good law.”

The letter from the Attorney General’s office goes on to say that the state Supreme Court could also choose to overturn the old ruling.

Republican lawmakers from both chambers have filed to intervene in the suit. A judge has yet to rule on that request.

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