Pa. Supreme Court throws out GOP challenge to Wolf’s COVID-19 emergency order

(*This story has been updated to include comment from Senate Republican leaders)

Pennsylvania’s state Supreme Court upheld Gov. Tom Wolf’s COVID-19 emergency declaration on Wednesday, ruling that an attempt by the Republican-controlled Legislature to overturn it was unconstitutional. 

The majority opinion, written by Justice David Wecht, joined by three of his colleagues, comes less than a month after the House and Senate passed a resolution that sought to topple the declaration that Wolf issued on March 6.

The declaration has armed Wolf with vast executive powers, which he used to shutter schools and businesses in the early days of the pandemic. 

Next move Wolf: House and Senate approve resolution toppling Gov’s emergency declaration

But Republicans in the General Assembly have said that Wolf has abused those powers by failing to consult lawmakers on business shutdowns, which led nearly 2 million Pennsylvanians to seek unemployment benefits.

The justices who signed on to the court’s majority opinion Wednesday issued “no opinion as to whether the governor’s response to the COVID-19 pandemic constitutes wise or sound policy.” 

Instead, they sought to determine whether state lawmakers had the power to check his executive powers in the time of emergency — and on that front, they found, the resolution they passed came up short.

In late night debate, House votes to undo Wolf’s emergency declaration

The justices said lawmakers failed to comply with the state Constitution when they declined to present the resolution to Wolf so he could veto or sign it.

Lawmakers had argued that the resolution sponsored by Rep. Russ Diamond, R-Lebanon, did not need the governor’s signature to become law, thanks to a statute in the state’s Health and Safety code. 

But the justices found that the resolution met the requirements for a “legal action” that required the governor’s signature to take effect. 

Circumventing such requirements, they wrote, would “grant the General Assembly such broad authority would be to rewrite our Constitution and remove the Governor from the lawmaking process,” the justices wrote. 

In a dissenting opinion, Chief Justice Thomas Saylor, joined by fellow Republican Justice Sallie Mundy, argued that allowing Wolf or any governor a veto to defend their expanded emergency powers was inconsistent with common sense and the separation of powers.

“I simply cannot envision that the framers of the Pennsylvania Constitution contemplated that the Governor could be invested with a panoply of exceptional powers,” Saylor wrote in his dissent, “but that the Legislature nonetheless would be powerless to implement a counterbalance that was not then subject to the chief executive’s own veto power.”

The four justices in the majority were all Democrats. 

Another Democratic justice, Kevin Dougherty, wrote a concurring opinion agreeing with the majority’s ruling.

But he went further, arguing that the high court should have found the state’s entire emergency code unconstitutional, voiding the law entirely even as coronavirus cases increase again.

In a statement, Senate Republican leaders who challenged Wolf’s order assailed the high court’s ruling.

The ruling “fails to uphold the Constitutional balance of power between the three, co-equal branches of government,” Senate President Pro Tempore Joe Scarnati, R-Jefferson, said.  “We understand the need for a temporary suspension of civil liberties under dire circumstances – something we agreed needed to happen initially as we worked to flatten the curve. However, while we work to protect lives, we cannot continue to disregard the civil liberties of Pennsylvanians. Our government was established to be of the people, by the people and for the people. With this ruling the Court has elected not to uphold the foundation of our democracy.”

The decision “represents a titanic shift in power which we believe is wrong and not in the best interest of justice,” Senate Majority Leader Jake Corman, R-Centre said. “The Court has essentially granted the Governor King status. As we approach the July 4th holiday when our Country celebrates the freedoms that our forefathers established and fought to uphold, the Court has returned an unchecked monarchy to Pennsylvania. The unilateral decisions made by the executive branch caused hardships for families and communities in every corner of the Commonwealth. Despite the challenges that can be seen across the state, the governor repeatedly spurned attempts by the General Assembly to provide input through legislation.”