On Friday, February 6, the Pennsylvania (PA) state legislature gave the final approval to put three state constitutional amendments on the ballot for a popular referendum scheduled for May 18. Two of these amendments address the power of the state governor to declare and renew emergency declarations and are both a direct result of conflict between the Republican-controlled legislature and the Democrat governor, Tom Wolf.
The first amendment, titled the Pennsylvania Emergency Declaration Amendment (2021), would add a section to the state constitution that would limit any disaster emergency declaration to a maximum of twenty-one days unless the state legislature voted to extend the order. Additionally, the legislature would be required to pass laws related to each class of emergency enumerated in the amendment and the governor would be forbidden from declaring another emergency based on “the same or substantially similar facts” without a resolution from the state legislature granting that power.
The second amendment, titled the Pennsylvania Legislative Resolution to Extend or Terminate Emergency Declaration Amendment (2021), would grant the state legislature the authority to extend or terminate an emergency declaration by a simple majority vote that is not subject to veto by the governor. This amendment is the direct result of a confusing conflict that took place in June 2020 after the state assembly passed a concurrent resolution to end the coronavirus disaster declaration. Supporters of the resolution argued that it was not necessary for the governor to sign it, while the governor obviously vehemently disagreed. The case went to the Democrat-controlled state supreme court (state supreme court justices are elected in PA) where it was ruled that the governor did have the authority to veto the resolution and prevent it from going into effect. This amendment would explicitly change that and allow the disaster emergency declaration to be ended unilaterally by the legislature.
Only time will tell if these amendments will be enacted into law, but it is worth noting that all ten of the constitutional amendments that have made it to the referendum stage since 1995 have been approved by voters. In fact, a constitutional amendment hasn’t been rejected since 1981. It is yet to be seen whether or not that track record will hold.
Whether they are enacted or not, some way to curtail the governor’s emergency power is urgently needed in the face of the egregious and seemingly unending violations of the traditional rights and liberties of Pennsylvanians in the face of the government’s coronavirus response. In September 2020, a federal judge, William Strickland, ruled that PA’s coronavirus restrictions were unconstitutional and egregious in numerous ways. Strickland noted that the rule-making procedure for the emergency was essentially compiled by an opaque committee with no public accountability, stating that “the manner in which Defendants, through their policy team, designed, implemented, and administered the business closures is shockingly arbitrary.”
Furthermore, the emergency rules were written in such a way that there is no way to end them. Even when the state authorities loosened lockdown restrictions, it was not a “return to normal” but a suspension of the lockdowns, as if those restrictions were the default state of legal existence in the commonwealth for the indefinite future. Strickland stated that in times of emergency some legal deference is due to authorities but “that deference cannot go on forever” and that “the record makes clear that Defendants have no anticipated end-date to their emergency interventions.”
As Ryan McMaken noted at the time, “So, what we have in Pennsylvania is basically a small secret ruling committee which fancies itself the new permanent ruling authority of Pennsylvania indefinitely. There is no end date, no public rule-making process, and no transparency at all.”
Unfortunately, the appeals court granted the state’s request for a stay of Stickman’s ruling while the government appeals the ruling, and the state’s authority has remained unchanged.
What is even more unfortunate, the Wolf administration has argued for months that its powers to put the millions of inhabitants of PA under veritable house arrest and to close businesses at its capricious whim do not even stem from the emergency declaration but from the Disease Prevention and Control Act. So even if both amendments are added to the Pennsylvania Constitution, the reality is that the governor’s restrictions will likely once again end up in front of the state supreme court that has continually deferred to Wolf’s ukases since the pandemic began.
Even though these amendments may not be silver bullets, they will help to reduce the use of emergency declarations. PA has actually been in a constant “state of emergency” since January 10, 2018, when Wolf declared a state of emergency due to the abuse of opioid medications. The state of emergency has been extended twelve times since then. While it is obvious that opioid abuse is a major problem here in PA, it is grossly inappropriate to have a perpetual state of emergency over the issue. If it truly were an “emergency,” then three years would have been more than enough time to enact legislation to make the necessary changes that are currently in effect only as a result of the governor’s unilateral action.
Not only will these amendments reduce the abuse of emergency declarations, but they will also help to decentralize power within PA. While covid has allowed the executive branch to run wild, PA is actually structured in a way that makes the decentralization of power easier. PA has the second-largest state legislature, surpassed only by New Hampshire. Critics who have been trying to reduce the size of the legislature state openly that with a smaller legislature those in power would be able to more quickly and easily enact their will with less resistance. PA also has the third-highest number of local governments in the country, which, as I pointed out in 2020, facilitates the stymieing of the state government’s efforts to exert centralized control. Removing the governor’s ability to unilaterally declare perpetual emergencies will help continue this tradition of decentralizing power and authority in the commonwealth.
