PA POST – Gov. Tom Wolf on Friday made good on his promise to seek speedy clarification from the courts in the dispute between the GOP-led legislature and his administration over his coronavirus emergency declaration.
He did so by asking the state Supreme Court to intervene and rule in his favor immediately.
On Wednesday, Senate GOP leaders Joe Scarnati (R-Jefferson) and Jake Corman (R-Centre) filed a petition in Commonwealth Court asking that Wolf be directed to issue an order ending the three-month-old declaration that shut many businesses across the state in hopes of slowing the spread of the coronavirus.
According to the GOP leaders, Title 35 — from which the governor’s emergency powers are drawn — allows the legislature to suspend a governor’s emergency declaration without the assent of the executive branch because the statute says that, upon passage of a concurrent resolution, the governor “shall” terminate the disaster declaration.
Wolf has argued for weeks that the Pennsylvania Constitution requires the governor’s signature for any concurrent resolution to have the force of law, and he has characterized the legislative branch’s actions as “unilateral” and accused them of sowing “chaos” and “confusion.” Wolf had indicated earlier in the day Wednesday that he planned to take the legislature to court himself.
“We’re going to have to take it to the courts to make sure that there’s not something that we’re missing here,” Wolf said Wednesday. “Maybe, unbeknownst to me, somewhere embedded in the constitution is the right of one branch to arbitrarily decide to do something that is at odds with the constitution. I just don’t know where that is.”
By petitioning directly to the state’s highest court, Wolf is seeking to bypass the Commonwealth Court, where the GOP filed its claim, and have the high court intervene through “King’s Bench” jurisdiction, a tool that allows the supreme court to intervene in matters of “immediate public importance.” While it is a rarely invoked tool, it was used in April when the court upheld the governor’s disaster declaration in the Friends of Danny DeVito case.
“The exigencies of the moment require that this Court exercise its jurisdiction,” Wolf’s filing argues. “This conflict between the Legislative and Executive branches is causing great confusion among the public as to whether the disaster continues and whether certain executive orders issued under the Emergency Code remain in place. This confusion is life-threatening, as individuals look to our government for guidance on how to protect themselves and their families from this deadly pandemic. Immediate action by this Court is essential to end this confusion.”
Jennifer Kocher, a spokesperson for Corman, said moving the matter directly to the Supreme Court is “not something we oppose.”
In an interview on Wednesday, Duquesne Law School Professor Bruce Ledewitz, an expert on the state constitution, questioned why Wolf would be in such a hurry to have a court intervene, noting that the tactic could backfire.
“It’s a terrible legal strategy,” said Ledewitz. “I would think the governor would want to stay away from the courts because the statute is silent on presentment.”
To Ledewitz, the most natural reading of the statute favors the Republicans’ argument that no gubernatorial signature is required. If that is the case, then Wolf is left to argue that the statute is unconstitutional. If the court agrees, that could lead to the entire law establishing emergency powers to be declared unconstitutional.
It comes down to a question of severability, Ledewitz said: Whether an unconstitutional part of a statute means that the entire statute is unconstitutional, or whether what the legislature hoped to achieve with the law can be accomplished without the unconstitutional provision.
The other option — if the court rules for the governor on statutory grounds — is to say that the legislature must not have intended to pass an unconstitutional statute, meaning that the fact the governor would have to sign a concurrent resolution was implied and thus to read such a requirement into the statute.
Ledewitz said he believes it is clear that the legislature’s goal when it passed the statute was to leave itself a check on the governor’s power. If that check is not constitutional because of the requirement for resolutions to be presented to the governor, the statute might not be able to stand because, otherwise, it would not follow the legislature’s original intent.
“When a court finds part of a statute unconstitutional, the court has to decide whether to strike down the entire statute,” said Ledewitz in an interview on WITF’s Smart Talk Friday. “In this case, Republicans would say, ‘This is not severable because, after all, we would not have given the governor extraordinary powers if we had no check.’ … They win either way.”
Ledewitz predicted that the courts would move carefully because they likely want to avoid striking down the entire emergency powers statute, so they are unlikely to rush into a high-stakes environment where that might be on the table. The state Supreme Court would be well within its rights to decline to hear the matter under King’s Bench jurisdiction, Ledewitz said, and send it back to Commonwealth Court, which had issued an order earlier Friday afternoon promising an expedited ruling.
“I hope that the court would say, ‘No, we’re not going to hear this case,’” Ledewitz said. “I hope the judges realize that the governor is making a mistake to run into court.”
The Republicans’ effort is predicated on the idea that the court needs to order Wolf to terminate the declaration, meaning that the declaration remains in effect until Wolf terminates it. Given that, Ledewitz said he does not understand why Wolf would want to rush to get a legal judgment on that issue since the ball is presently in his court.
“For him to rush to court makes very little sense to me,” said Ledewitz. “I don’t think he’s getting good legal advice.”
PA Post is an independent newsroom covering policy and government in Pennsylvania. For more, go to www.papost.org.