Governor Wolf of Pennsylvania is fond of lecturing the citizenry of the state on the necessity for them to comply with his COVID-19 emergency edicts. He is not shy about using the power of the various regulatory agencies under his control to strong arm businesses into closing or limiting their activities. We are told every day how we must respect the “law” and toe the line. Perhaps, then, it is time we spend some time focusing on exactly where the Governor purports to get the power he believes allows him to keep the state shuttered in perpetuity.
Wolf’s declaration of an “emergency” in Pennsylvania is based on portions of the Pennsylvania statutory code, which read in relevant part:
“§ 7301. General authority of Governor.
(a) Responsibility to meet disasters.–The Governor is responsible for meeting the dangers to this Commonwealth and people presented by disasters.
(b) Executive orders, proclamations and regulations.–Under this part, the Governor may issue, amend and rescind executive orders, proclamations and regulations which shall have the force and effect of law.
(c) Declaration of disaster emergency.–A disaster emergency shall be declared by executive order or proclamation of the Governor upon finding that a disaster has occurred or that the occurrence or the threat of a disaster is imminent. The state of disaster emergency shall continue until the Governor finds that the threat or danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist and terminates the state of disaster emergency by executive order or proclamation, but no state of disaster emergency may continue for longer than 90 days unless renewed by the Governor.”https://law.justia.com/codes/pennsylvania/2016/title-35/chapter-73/section-7301
Later in the Pennsylvania statute in question it states:
“(d) Definitions.–As used in this section, “major disaster” and “emergency” shall have the same meanings as defined or used in The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 93-288, 42 U.S.C. § 5121 et seq.).
(May 31, 1996, 2nd Sp.Sess., P.L.1762, No.2, eff. imd.)”
In other words, as is typical for any law, the term “emergency” is not a generic reference. It is a term of art. It has a specific legal meaning which is specified precisely.
What is that meaning?
The Stafford Act referenced in the Pennsylvania statute says that an “emergency” is any occasion or instance for which “in the determination of the President” federal assistance is needed to supplement State and local efforts to save lives. That pretty clearly conditions the existence of an “emergency” for these purposes on a determination by the President that it exists. Since the President has opposed Governor Wolf’s measures since the outset, I think we can safely rule that out as a basis on which Wolf could act.
The Stafford Act defines a “major disaster” as a natural catastrophe such as “any hurricane, tornado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm or drought.” The drafters of the bill went to some significant trouble to be comprehensive and cover a wide range of natural disasters to which a response might be necessary. And, yet, there is no reference of any kind to anything remotely resembling an outbreak of disease.
In short, Wolf is invoking as the basis of his authority to shut down the state a statute, which was never designed for this purpose and shows no indication of being intended to grant the authority he claims.
It gets worse.
Even if we were to consider for a moment that the ongoing health situation constituted an emergency for the purposes of the law, what powers exactly does the Pennsylvania statute convey on the Governor? Wolf has acted as if he now has the authority to make law at will. Is there any indication that is true?
The Pennsylvania statute on which Wolf relies enumerates a whole bunch of things the Governor can do in the event of an emergency. He can:
- Purchase or lease temporary housing units for people to live in.
- Help counties and municipalities acquire sites for temporary housing.
- Advance and loan funds.
- Remove debris and demolish buildings.
- Temporarily suspend or modify “for not to exceed 60 days any public health, safety, zoning, transportation (within or across this Commonwealth) or other requirement of statute or regulation within this Commonwealth when by proclamation the Governor deems the suspension or modification essential to provide temporary housing for disaster victims.”
- Accept funds from the federal government for the purpose of removing debris or wreckage from publicly or privately owned land or water.
- Evacuate individuals from areas struck by the disaster.
- Control ingress and egress to disaster zones.
- Suspend the sale of alcohol, firearms and explosives.
In other words, Wolf can do all kinds of things you would expect him to be able to do to provide housing for people displaced by a hurricane, restore order in an area that had experienced massive flooding or save lives in the event of a catastrophic drought.
And, yet, there’s not a single word in any of this lengthy, well thought out statutory language about making everyone wear a mask, deciding how many people are allowed to sit inside a restaurant or decreeing when and how the citizenry can worship. Not a single word. In fact, any reasonable interpretation of the totality of the statute on which Wolf claims to rely would have to conclude that this law was never intended in any fashion to cover a health “emergency.” It would also, I think, have to conclude that the legislature has now had nine full months in which to pass such a law should if it believed one necessary, and that, therefore, there cannot possibly be a necessity for the Governor to twist and pervert existing law under the claim that he is acting in extremis.
If the people’s representatives wanted the Governor to be taking these actions they would have probably told him by now.
Perhaps, though, here is the most fundamental legal issue with Wolf’s continued dictatorial pronouncements. They are unconstitutional under the Constitution of the Commonwealth.
Article 1, Section 1, Constitution of the Commonwealth of Pennsylvania reads,
“§ 1. Inherent rights of mankind.
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”Constitution of the Commonwealth of Pennsylvania
This Governor issued his initial decree shutting down this state nine months ago. At that time, he could claim I suppose that he was acting under the pressure of time to take temporary measures to save lives. He can claim that no longer.
The measures the Governor has imposed and continues to impose are crushing businesses and destroying lives. Millions of Pennsylvanians are facing eviction. Huge swathes of the economy are being decimated. This cannot possibly be consistent with a founding document, which says explicitly that all Pennsylvanians have a right to possess and protect property and reputation. Being forced into foreclosure and onto the street at the whim of a despot cannot conceivably be allowable in a state which enshrines the right of every citizen to pursue happiness.
The Governor claims we must respect the law. I agree. He is acting illegally. He is acting outside the law. He has abrogated to himself authority he never had and could not constitutionally exercise. Our craven legislature has watched and done nothing for nine months other than occasionally orchestrate publicity stunts on the steps of the capital.
The time has come for Pennsylvanians to remind all of these “public servants” for whom they work and from whom their power derives. The time has come to stand up. Go tell the Governor “I will not comply.“