Feb. 4, 2021, Harrisburg, Pa.,— On March 6, 2020, Gov. Tom Wolf proclaimed a disaster emergency in Pennsylvania, granting himself the extraordinary power to supersede many state laws to quickly address the burgeoning COVID-19 pandemic. He has renewed the emergency proclamation three times since March.
Now, 336 days later, the Pennsylvania House and Senate have passed a proposed amendment to the state constitution, embodied in Senate Bill 2, limiting a governor’s power to renew an emergency proclamation without the approval of the General Assembly. The proposed amendment, which requires the general assembly's approval to extend emergency proclimations beyond 21 days, will now face it's final hurdle as an initiative on the May 18 primary election ballot.
“It’s unfortunate that lawmakers in Harrisburg have been pushed to the point of having to amending the state constitution,” said Commonwealth Foundation Vice President Nathan Benefield. “But Gov. Wolf stubbornly insisted, and the state supreme court wrongly ruled, that he could both give himself unlimited emergency powers and ignore the will of the General Assembly to keep them indefinitely. No matter the reasons for an emergency proclamation, Gov. Wolf created a constitutional crisis and violated the most fundamental tenants of our democracy. This reform would require the current and all future governors to consult with the legislature.”
So, how did we get here?
Spring of Controversy
The state’s existing emergency code—the statute at the heart of the ongoing dispute—says that emergency proclamations last for 90 days. At that point, the governor can either choose to end the state of emergency or amend it to renew the proclamation for another 90 days. The law also states that, “the General Assembly by concurrent resolution may terminate a state of disaster emergency at any time,” at which point “the Governor shall issue an executive order or proclamation ending the state of disaster emergency.”
Wolf renewed his emergency proclamation for the first time on June 3, 2020, saying, “Pennsylvanians have done a tremendous job flattening the curve and case numbers continue to decrease.” But he noted that state agencies still needed the resources and federal funding that he claimed are associated with an ongoing proclamation — a claim that's inconsistent with how previous disaster declarations have played out.
The move deepened aggravation that had been brewing for months among many lawmakers in the General Assembly. The first 90-days of the pandemic response had been marred with controversy and Republican legislative leaders accused Wolf of shunning outside input into his response to COVID-19.
A sharp economic downturn had gripped the state, with unemployment still at over 12% by June, overwhelming the state’s ability to process unemployment insurance applications. A member of Wolf’s own Workforce Development Board resigned in protest, claiming he and other business leaders in the state had been ignored while the governor implemented a haphazard and controversial “non-essential” business shutdown. Part of that shutdown included a waiver process that itself was the subject of several legal battles and described by the CEO of the Carlisle Chamber of Commerce as, “clear as mud.”
At the same time, Pennsylvania’s COVID-19 death rate was near the top nationally. And the seemingly uncontrollable rate of death in nursing homes was causing alarm. Approximately, 70% of COVID-related deaths had happened in long-term care facilities. Pennsylvania Secretary of Health Racheal Levine, who generated widespread outrage for pulling her own mother out of a nursing home, had taken additional flack for implementing a policy forcing nursing homes to accept COVID-positive patients. Her department was also under constant pressure from the press for data proving the necessity of particular economic restrictions and the department’s apparent inability to properly manage the COVID data that they had.
This tidal wave of controversy led to a bi-partisan majority passing House Resolution 836, a concurrent resolution meant to end Wolf’s proclamation, per the state emergency code, on June 9. The same day, the Senate passed SB 1166, a proposed constitutional amendment to limit emergency proclamations, and require a concurrent resolution by the General Assembly to extend them. That bill, also passed in the House, would later be introduced as SB 2 and HB 55 of 2021—SB 2 is what passed this week.
At the time, House Majority Leader Bryan Cutler (R-Peach Bottom) said, “The governor has used the power afforded to him under this declaration without input from the Legislature, suspending state laws, spending money without legislative approval, and his most unfair action of all, shutting down the family-sustaining careers of millions of Pennsylvanians.”
The State Supreme Court Sides With Wolf
After passing HR 836, Republican leadership refused to present the proclamation to Wolf, claiming that he had no right to sign or veto the bill. They cited the emergency code’s “shall issue” clause as proof that Wolf had no choice but to end the proclamation.
Wolf disagreed, insisting that, “any concurrent resolution need to come to the Governor for approval or disapproval.”
Wolf sued. The resulting lawsuit was quickly marshalled through the state court system by the governor, who petitioned the Pennsylvania Supreme Court to exercise its “King’s Bench” powers to consider the case before lowers courts could do so.
The state Supreme Court, which is filled by statewide partisan elections and currently has a 5-2 Democratic majority, sided with Wolf. In their opinion, they dismissed arguments that the state constitution gave only the legislative branch the power to supersede the law and noted that “the General Assembly itself decided to delegate power to the Governor under Section 7301(c) [the emergency code].”
“It is striking that the principle of checks and balances between branches of government has been so deeply tarnished in the very state where the U.S. Constitution was created and just days before we celebrate Independence Day,” Commonwealth Foundation President and CEO Charles Mitchell said in a statement after the ruling.
The ruling gave the governor the power to declare an emergency and then perpetuate that emergency, and the powers it automatically affords him, unless the General Assembly can override his veto with a two-thirds majority.
“This new standard effectively eliminates the ability to override a governor who is unflinching in maintaining his emergency powers,” says Benefield. “The court has made it so the General Assembly could more easily impeach a governor than end an emergency proclamation.”
Impeachment requires a three-fifths majority in Pennsylvania. The two-thirds majority needed to override a veto has been rarely reached in state history.
Legislators Use Last Tool Available
In a strongly worded statement issued at the beginning of the new legislative session on Jan. 13, 2021, Gov. Tom Wolf called the attempt to pass the amendment “subverting democracy.” He said, “This would force partisan politics into the commonwealth’s disaster response efforts and could slow down or halt emergency response when aid is most needed.”
However, legislators in favor of the amendment view it as their last available tool to reassert the voice of the people’s elected representatives in long-term emergencies.
Over the course of the pandemic, dozens of bills aiming to modify the governor’s emergency response have been passed and then quickly vetoed. This includes a flurry of bills passed in early Spring, 2020, to allow for real estate, construction, curbside retail, car sales, and other local industries to be given the same leeway to operate within health and safety guidelines that Wolf had given big box stores like Lowes and Wal Mart.
Such unilateral decision making by Wolf has persisted throughout the year. His latest decision to shut down restaurants and bars over the Christmas season came amidst fervent protest by legislators and local business owners who wanted proof that the new restrictions were necessary. Wolf provided none.
“With this amendment, we are not saying that the governor can’t act – we are simply saying that he can no longer act alone without justifying his actions before the people’s representatives in the General Assembly,” said Sen. Ryan Aument during debate about SB 2 on the Senate floor.
The People Will Decide
Now that the House has concurred with the Senate’s version of the amendment, it will become a ballot initiative during the upcoming primary election on May 18. If a majority of voters approve of the measure, it will be added to the Pennsylvania Constitution.
This process precludes the ability of Wolf to veto the measure. In his Jan. 13 statement, he railed against this long-established process saying, “The Pennsylvania Constitution is the cornerstone of our democracy. Indeed, the Republicans’ effort demonstrates that we need to rethink the very way that our Constitution is amended. No political party should control when and how our governing charter is changed.”
“The governor questioning the legitimacy of our constitutional amendment process illustrates how far he is willing to go to keep control,” said Benefield. “Just as the president doesn’t have any input into amending the U.S. Constitution, the governor has never had any input into amending the Pennsylvania Constitution. No governor should be able to write their own rulebook in a democracy, whether it’s a time of emergency or not. Pennsylvanians should reassert that truth by voting for this amendment, and maintaining the checks and balances required for constitutional governance.”