Wolf v. Scarnati (2020)

Summary:

The Pennsylvania Supreme Court’s majority—Justices Wecht, Baer, Todd, and Donohue—determined that the General Assembly could not terminate then Gov. Tom Wolf’s COVID-related emergency proclamation by concurrent resolution, despite the Emergency Management Services Code’s language allowing for such termination. Instead, the state’s top court held that any such resolution must, like a bill, go to the governor for approval or veto.

The Verdict:

The majority purported to apply constitutional principles to save the Emergency Management Services Code, but it clearly avoided equally important constitutional principles, making the grant of authority to the governor untenable. In the end, they endorsed an arrangement under which the General Assembly could hand over emergency powers to the governor, but then only take it back with a supermajority. The COVID-19 pandemic presented new issues that tested states’ commitment to separation of powers, and the Pennsylvania Supreme Court failed.

Background:

In March 2020, Wolf declared a state of emergency over the COVID-19 pandemic and issued a Proclamation of Disaster Emergency under the Emergency Management Services Code. Thereafter, Wolf issued orders shutting down certain businesses.

In June 2020, after Wolf “renewed” his proclamation, the General Assembly adopted a concurrent resolution terminating the governor’s proclamation. However, Wolf filed a request to the Pennsylvania Supreme Court, asking that it declare the concurrent resolution null and void for failure to adhere to the presentment requirement.

The Pennsylvania Supreme Court’s majority determined that the concurrent resolution had legal effect akin to a bill and therefore should have been presented to the governor for approval or veto, despite the language of the Emergency Management Services Code. To escape the presentment requirement, in the majority’s view, the code should not have required the governor to conform to the General Assembly’s declaration.

Chief Justice Saylor’s dissent, with which Justice Mundy joined, argued that the section of the Emergency Management Services Code at issue should be considered a constitutional form of legislative veto. If the General Assembly is allowed to hand over to the governor the power to suspend laws and commandeer private property without legislative checks, the General Assembly should also be able to unilaterally end the governor’s power once an emergency has ended.

Justice Dougherty issued a concurring and dissenting opinion, essentially agreeing with Chief Justice Saylor’s premise but reaching a different conclusion. In his view, if the presentment requirement rendered the concurrent resolution unconstitutional, then the entire statute should be declared unconstitutional as inseverable. The feature of the law allowing the General Assembly to hand over emergency powers to the executive branch was clearly premised on the idea that it could be taken back by concurrent resolution.