Amicus Brief: Tom Wolf v. Joseph B. Scarnati, et al.

The novel coronavirus pandemic has many Americans struggling to keep the wolf from the door of their homes and businesses. For Pennsylvanians, the threat has become all the more menacing, because the wolf at their doors is the governor—and the state supreme court just invited him in.

Like many of his counterparts across the country, Gov. Tom Wolf unilaterally declared a state of emergency in response to the pandemic. In a Proclamation of Disaster Emergency issued on March 6, he put himself in charge of the state’s response to Covid-19 to the exclusion of the elected legislature. Since that date he has issued multiple executive orders with binding legal effect—that is, new rules or suspensions of laws (with at least temporary effect)—never approved by the legislature.

As in many states, the State of Disaster Emergency gives the governor ostensibly temporary powers to bind the citizenry without legislative participation. While efficient in cases of true cataclysm—particularly when a legislature is unable to convene—such executive edicts do not benefit from the careful deliberation and democratic input and legitimacy of a full legislative process. Nor do the governor’s rules keep the law-passing separate from the law-executing—as the state constitution requires. Rather, he has now consolidated both powers in a way that enables him to target favored or disfavored businesses or industries (or, say, favor gatherings for social protest purposes, but disfavor gatherings for religious worship purposes).

One question worth asking is whether the emergency declaration was even necessary to fight the coronavirus effectively. Might compliance with new safety policies be higher—and thus enhance everyone’s safety—if those rules were adopted by a bipartisan legislature rather than dictated by one man? Other questions include whether the declared emergency is lawful and when will it end? On April 13, in the Friends of Danny DeVito v. Wolf case, the Pennsylvania Supreme Court turned away an earlier challenge to the governor’s assumption of emergency powers, implying that a vote of the legislature could end it: “As a counterbalance to the exercise of the broad powers granted to the governor,” it wrote then, “the Emergency Code provides that the General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.”

Shortly after the governor renewed the state of disaster emergency on June 6 (which had expired after 90 days), the General Assembly exercised the counterbalancing power noted by the Supreme Court and passed a concurrent resolution on June 9 to terminate the governor’s emergency powers immediately. After hearing daily from constituents that the governor’s lockdown orders are killing businesses they had built over decades and are destroying their livelihoods, legislators from both parties evidently decided they had waited long enough. The bipartisan vote in the state house was 121-81, including all Republicans and 12 Democrats in favor, and the vote in the state senate was 31-19, with all Republicans and 2 Democrats in favor. Together more than 60% of the legislature voted to end the governor’s unilateral rule.

Rather than accept that bipartisan action by the democratically-elected legislature, taken under the same statute that authorized him to declare an emergency in the first place, Governor Wolf refused to relinquish his special powers. When state legislators sued seeking to force an end to the state of emergency, he asked the Pennsylvania Supreme Court to exercise its aptly named king’s bench jurisdiction to decide the case.

On July 1, the state supreme court in Wolf v. Scarnati et al., held 4–1–2 that a vote by both houses of the legislature counts for nothing. All four justices backing Governor Wolf’s position (JJ. Wecht, Baer, Donohue and Todd) were elected to the state supreme court as Democrats. This slim court majority abandoned the logic of “counterbalance” that had supported its April decision in the Friends of Danny DeVito case. As a result, Gov. Wolf now wields single-handed executive power greater than any seen in Pennsylvania since the American Revolution got rid of King George III.

The legislature’s view is that it makes perfect sense that a concurrent resolution could end the self-declared, extraordinary emergency powers of a governor, as the statute directs. Sometimes a legislature might not be in session when an emergency arises, or else it might not be able to meet in the early days of a crisis when quick and important decisions have to be made—such as quarantining sick people. But once the legislature assembles and passes a concurrent resolution, that is an unmistakable signal that the legislature is ready and able to resume its proper constitutional role as lawmaker. No constitutional provision then permits the governor to keep the legislature on the sidelines and supplant it as lawmaker.

The governor’s contrary legal argument is that under Article III, Section 9 of the state constitution, the legislature has to present its concurrent resolution to him for his signature (as it would have to do with a piece of legislation). Under his theory, he can then veto the concurrent resolution and it would take a two-thirds vote in each house of the legislature to take away his emergency powers—which is about 6-7% more votes than the concurrent resolution got in either house.

The Supreme Court bought the governor’s argument, but does it make sense? Does the Pennsylvania Constitution really permit a governor to call a State of Disaster Emergency on his own accord and thereby sideline both houses of the legislature (that happen to be in the opposition party’s control) unless and until the governor decides to relinquish his power? Does the constitution really require a two-thirds majority in both houses—more votes than would be needed to impeach the governor and remove him from office entirely—just to bring the State of Disaster Emergency to an end?

In a word, no. The concurrent resolution is not a piece of legislation subject to Article III, Section 9’s “shall be presented to the governor” language because the resolution is not a legislative act. Besides, if the legislature cannot end the State of Disaster Emergency without going through the full legislative process of bicameralism (i.e., passage by both houses of the General Assembly) and presentment (i.e., governor’s approval), then why can the governor start (or end) the emergency without going through the full process too? If the legislature’s ending the state of emergency is a legislative act, then the governor’s ending it must also be a legislative act. Logically, the argument would have to run both ways. The fact that another legislature passed the Emergency Code several decades ago hardly substitutes for bicameral approval of any edicts or suspensions of law Gov. Wolf might order now.

Alternatively, if one agrees with the governor and the Supreme Court that the concurrent resolution is an act of lawmaking that does require presentment to the governor, that renders the Emergency Code itself unconstitutional. Article II, Sec. 1 of the Pennsylvania Constitution states: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” In other words, the constitution vests the legislative power in the legislature—not in the governor.

So, if the statute under which the governor declared an emergency really allows him to enjoy legislative power that the legislature cannot take back without his permission, then that statute is unconstitutional. Sometimes called a ‘nondelegation doctrine’ the idea is that because the people have assigned or ‘vested’ the legislative power in the General Assembly, the legislature is not allowed to give the power up or ‘divest’ it to the governor. Even if the governor is all too willing to accept the power, it is not a power that the legislature was free to subdelegate to him in 1978.

Seen from this vantage point, treating the legislative power as delegable destroys the carefully wrought structure of a constitution that deliberately divides power across three branches. By ruling otherwise, the Supreme Court majority has botched this straightforward case. Arguably the court could either have upheld the entire statute as constitutional (thus upholding the concurrent resolution and ending the state of emergency), or struck it down entirely as unconstitutional (thus invalidating the Emergency Code and ending the state of emergency). Instead the court creatively upheld the portion of the statute divesting legislative power to the governor while striking down the portion that gave the legislature a viable check on that power.

Whatever might be said for that maneuver as a matter of statutory (or constitutional) interpretation, the court provides zero reason to believe the legislature that passed the Emergency Code would have agreed to such a lopsided power arrangement. Justice Wecht’s opinion for the court faults the legislature that passed the Emergency Code: “The General Assembly itself decided to delegate power to the Governor under Section 7301(c). Current members of the General Assembly may regret that decision, but they cannot use an unconstitutional means to give that regret legal effect.” But that fault assignment pretends that the former legislature passed the lopsided, adulterated version of the Emergency Code that the supreme court itself invented in this case.

Some might wonder, what is the problem with this new power arrangement? Perhaps the Founders’ distrust of accumulations of power were misplaced. After all, Gov. Wolf is popular (for now) and maybe he is doing the right thing as a matter of public policy. But the folks whose livelihoods are being destroyed by Gov. Wolf’s diktats have a constitutional right not to be stripped of their civil liberties by a single government official. If the government is going to order a lockdown or other measure that destroys someone’s livelihood, that needs to be done with due process of law—in this case, the legislature’s approval.

The state constitution—like its federal model—separates powers precisely so that all three branches have to sign off before the government may deprive a citizen of liberty or bind a citizen with a criminal penalty. That document limits the governor’s power to enforcing laws, not writing them. When the temporary emergency powers reverse that constitutional order and permit the governor to issue edicts and suspend laws, a simple majority of the legislature needs to be able to undo those actions and end the the state of emergency. Otherwise, the governor is exercising constitutionally forbidden single-branch lawmaking power. The governor and state supreme court have disregarded this core constitutional constraint.

The state Constitution does not empower the court to coronate a governor to rule like a monarch until—when? A vaccine is in place? He deigns to surrender power? His term ends? Apparently until a full two-thirds of each house of the General Assembly is willing to oust his emergency powers. But the executive is never supposed to be able to initiate lawmaking. A former legislature’s simple majority vote for the Emergency Code cannot overturn that constitutional design. Rather than require a two-thirds vote to allow single-branch lawmaking (by the legislature after a governor’s veto), the court has construed the state Constitution to allow the governor’s single-branch lawmaking unless two-thirds majorities in each house of the General Assembly oppose it. The court’s ruling thus turns checks and balances on its head by making the legislature’s ability to check the governor—and his unilateral lawmaking—far too difficult.

The Pennsylvania Supreme Court’s ruling also deprives Pennsylvanians of the U.S. Constitution’s guarantee in Article IV, Sec. 4: “The United States shall guarantee to every State in this Union a Republican Form of Government[.]” While that provision is usually thought of as a “political question” judges cannot adjudicate, Gov. Wolf may prove the exception. A federal court could ascertain he is not governing consistently with representative government when it comes to the State of Disaster Emergency. Indeed, it makes a mockery of self-government, voting rights, and constitutional principles like ‘one person, one vote’ or ‘count every ballot’ when a governor (with the supreme court’s blessing) can disenfranchise the entire duly elected state legislature.

The threat to life and health from Covid-19 will likely dissipate eventually. But the menace the supreme court’s Wolf decision—and Governor Wolf’s refusal to yield his emergency powers—pose to liberty and livelihood will last until those actions are reversed. Even Governor Wolf’s supporters may be wary of the example being set here for a future governor they distrust. Legislators and citizens in other states may likewise draw a careful lesson about not drafting statutes that state supreme courts can misconstrue to cede near-absolute power to governors of either party.

When a citizen of Philadelphia asked Benjamin Franklin what form of government the Framers had given the people, he famously replied, “A Republic, if you can keep it.” The state supreme court’s Wolf v. Scarnati decision puts that proposition very much in doubt in the Commonwealth. If Pennsylvanians now wish to be rid of unchecked executive power, they will have “To work! To work! In Heaven’s name! The wolf is at the door!”