The Capitol building in Harrisburg (Capital-Star photo by Sarah Anne Hughes)
With a new approach to passing laws, Republicans in the GOP-controlled Legislature are now looking to limit the state’s top health official through the constitutional amendment process.
The latest effort to avoid a gubernatorial veto comes from Rep. Ryan Warner, R-Fayette, who announced plans for an amendment in a Friday memo to colleagues that would curtail the Pennsylvania secretary of health’s emergency powers.
Describing the March 2020 statewide shutdown and subsequent COVID-19 mitigation efforts as “unilateral orders of an unelected bureaucrat that infringed on their rights and shuttered their business,” Warner said the Legislature should have a say over emergency responses and public health orders.
“Those orders were given the same gravitas of law but were not subject to the checks and balances of the coequal branches of our government,” he said. “It flies in the face of democracy that one unelected individual would have the autonomous ability to enforce their will on 13 million people.”
The proposed referendum is expected to include identical language to the so-called vaccine passport bill introduced by Sen. Kristin Phillips-Hill, R-York, earlier this year. Democratic Gov. Tom Wolf vetoed the legislation after Sen. Judy Ward, R-Blair, a former nurse, added an amendment to prohibit the health secretary from enacting business closures and mandating statewide health guidelines.
“This legislation is contradictory, misguided, and irresponsible,” Wolf said of the veto. “This bill prohibits basic public health measures, which are necessary to curb infectious disease transmission and save lives. Specifically, the bill eliminates the Department of Health’s ability to take disease control measures for any future contagious disease, resulting in the inability to contain the spread of infectious diseases in the commonwealth or long after the current pandemic is over.”
If the constitutional amendment is ultimately approved by voters, the health secretary — who is appointed to the position by the governor — could not mandate statewide business closures or require people who have not been exposed to a contagious disease to follow social distancing and masking guidelines, stay-at-home and quarantine orders, and travel restrictions.
The initial bill also included language that would prohibit the health secretary from requiring people who haven’t been exposed to practice a “specific hygienic practice,” such as handwashing.
“In a democracy, these are decisions that can and should be made by an elected legislature,” Warner said.
Kevin Levy, a Philadelphia attorney who has tracked the Wolf administration’s COVID-19 response, said the proposed amendment would be “very far-reaching” and could “unnecessarily kneecap” a future health secretary during a public health emergency.
“Constitutionalizing limits on the ability of a governor to issue executive orders for well over a year after the initial outbreak makes a certain sense,” he told the Capital-Star, referring to the May primary election and voters’ decision to strip the governor of some emergency power.
He added: “Removing all authority from the secretary of health doesn’t.”
If the Legislature pursues the constitutional amendment, Levy suggested that lawmakers consider putting limits — such as for the time of scope — on their authority rather than removing all power.
“One major problem” with the proposal is that it presupposes the government can accurately track which individuals have been exposed or potentially exposed to a highly contagious virus or disease, Levy said.
“A chief reason that the COVID-19 pandemic has lasted so long is due to the long time period between when an individual has been exposed to the virus and when they begin to show symptoms of COVID-19,” Levy told the Capital-Star. “The contemplated amendment would prevent future secretaries of health from getting to those asymptomatic-but-contagious individuals in any meaningful way simply because we have no way of knowing during a pandemic like COVID-19 who has been actually or potentially exposed.”
Before a ballot question reaches voters, the Legislature must pass the proposed amendments in two consecutive sessions. The process can take months, if not years, and can cost millions. According to an earlier estimate for another GOP-backed referendum from the Department of State, the cost for advertising could range between $2-3 million.
Since the May 18 primary election, state Republicans have increasingly looked to the constitutional amendment process because a governor cannot veto a ballot question.
GOP lawmakers also have unveiled a proposed constitutional amendment to expand voter identification requirements and floated proposed referendums to repeal Act 77 of 2019, which allowed for no-excuse, mail-in voting.
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