PA POST – Gov. Tom Wolf on Wednesday pledged to take the legislature to court to resolve a dispute over the standing of a concurrent resolution passed Tuesday night to end the governor’s coronavirus emergency declaration.
The Wolf administration says the state constitution is clear on this matter: For a resolution to have the force of law, it must bear the governor’s signature or have a two-thirds override vote in each chamber of the legislature. That draws on the text of Article III, Section 9 of the state constitution.
Republicans in the General Assembly argue, instead, that Title 35 of the Pennsylvania Consolidated Statutes, from which the governor’s emergency powers are drawn, contain a provision that allows the legislature to terminate a disaster declaration simply by passing a resolution through both chambers, at which point the governor “shall” terminate the declaration.
The legislature does not plan to formally present the resolution to the governor, which would allow him to disapprove (effectively veto) it and send it back for a possible override. Although some Democrats broke ranks in both chambers to support the resolution, neither chamber reached the two-thirds threshold that would be necessary for a veto override.
But unless the resolution is presented to the governor, he cannot formally disapprove of it, Gregory Schwab, the governor’s counsel, said. Until that happens, the administration maintains that the resolution has no legal effect.
“Nothing changes,” said Schwab. “Essentially, the resolution that was passed last evening is meaningless.”
Still, the governor plans to take the issue to court to resolve the ambiguity caused by the diverging messages from the executive and legislative branches. It is not clear how exactly the matter will reach the courts; Schwab repeatedly declined to get into specifics as to the governor’s legal strategy. But the governor was clear that the judicial branch would have a say.
“We’re going to have to take it to the courts to make sure that there’s not something that we’re missing here,” said Wolf. “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.”
Even if the declaration were to be terminated, Wolf said the central intent of the legislature’s arction — reopening more businesses — would not be accomplished because the orders restricting business activity during the coronavirus epidemic are also nested under authority delegated to the Secretary of Health under a separate statute.
“Ending the disaster declaration would not reopen anything. It just won’t. And anybody who says differently is wrong,” Wolf said.
Ending the resolution would, however, eliminate the legal authority under which the state waived certain licensing requirements, allowed telehealth services across state lines, and opened food distribution sites, Wolf said. It also would eliminate the legal authority under which the governor suspended utility shutoffs and residential evictions.
Until the matter is resolved by the courts, Wolf urged Pennsylvanians to continue to abide by orders issued under the terms of the emergency declaration, including the prohibitions on evictions and utility shutoffs.
Wolf said that the legislature’s action has caused “chaos” and was rooted in “carelessness,” but there ought to be no question about whose directives Pennsylvanians follow until the matter is resolved by the courts.
“Who are Pennsylvanians supposed to listen to during this pandemic, during this crisis?” Wolf was asked.
Wolf responded immediately.
PA Post is an independent newsroom covering policy and government in Pennsylvania. For more, go to www.papost.org.