Updated: Jan 13, 2022
Omicron notwithstanding, rising COVID-19 vaccination rates in the US means that an end at least to the acute phase of the pandemic may soon be in sight. It’s a good time to start to examine lessons learned so we can be better-armed for the next pandemic. As students of local and state law, that means a lookback at 50 states, and many local governments. Today, I make a start, with Pennsylvania. It’s big, it’s got divided government, and its governance response to the pandemic reflects the perfect storm of a public health emergency combined with a hyperpolarized presidential election year, during which every legislative move occurred through the lens of partisan advantage.
At the political level, Pennsylvania’s pandemic response illustrates why even in an emergency, it is important to create at least a semblance of interbranch coordination. The rush by Governor Wolf and his team to mount an emergency response promptly and effectively led to some early missteps. In particular, lack of consultation with legislative leaders in Harrisburg (although consultation was objectively difficult) proved costly. At the same time, it is not clear that the Republican legislative leadership was interested in good faith negotiation. Reform efforts in the state will require enhanced accountability for results not only at the executive level, but also in legislative districts throughout the Commonwealth.
At the operational level, Governor Wolf, with advice of then-Commissioner of Health Rachel Levine, moved decisively at the pandemic’s start with executive orders (EO) the first on March 6, 2020, closing non-life sustaining businesses. He relied on the Pennsylvania Emergency Code 5 Pa.C.S. § 7301 , constitutional powers under Pennsylvania Constitution’s Article 4, and common law police powers.
Subsequent orders among other things temporarily suspended in-person dining at restaurants and bars, restricted the physical operations of “non-life-sustaining” businesses, limited the size of in-person gatherings, and directed residents to stay at home except when engaged in certain activities or when visiting places where social-distancing could be practiced. By its terms, each EO continued for 90 days or until terminated by the General Assembly by Concurrent Resolution (CR).
Pennsylvania’s Republican legislative leadership reacted with a series of lawsuits. The first suit, filed only two weeks after the original EO, was a challenge to it by a real estate agent, a golf course, and a candidate for Pennsylvania House of Representatives named Danny DeVito (no, not that one). Brushing back a takings challenge, procedural due process, equal protection and First Amendment claims, the Pennsylvania Supreme Court sided with the Governor.
Thwarted, the legislative leaders decided to end the EO by CR. That led to a second suit, Wolf v. Scarnati. The Republicans hold a majority in the Pennsylvania General Assembly, but not a veto-proof one. How to end the state of emergency, but not have the governor veto the CR? Well, you can try evading the presentment requirement, which allows the Governor the opportunity to sign or veto a bill. The legislators argued that the CR was one of three types of acts of the legislature that did not require presentment. The Pennsylvania Supreme Court disagreed, again siding with the Governor. And so, the EO stood.
It didn’t end there. Growing resentment against lockdowns, school closures and serial renewals of EOs as the pandemic dragged on, anti-science disinformation, and a strong pro-Trump movement in rural, economically depressed counties fueled populist sentiment targeting Wolf, Levine, and federal allies such as the CDC. In coordination with Republicans in the legislature, these forces secured placement on the May 2021 ballot for two Constitutional amendments. Both passed.
The first of these amendments modified Article III, Section 9 to empower the General Assembly to extend or terminate a gubernatorial disaster emergency declaration, or any portion thereof, by a simple majority vote, without the need for presentment to the Governor, thus reversing Wolf v Scarnati. The second added a new Section 20 to Article IV, which now limits the duration of a gubernatorial disaster emergency declaration to twenty-one days absent an affirmative extension by CR of the General Assembly.
The effect is to strip a Pennsylvania governor, now and in future public health emergencies, of the ability to continue an EO in effect for longer than 21 days without legislative input, and allows the legislature to terminate any emergency disaster declaration without the Governor’s agreement. This is a dangerous rule. It has already been the basis for a successful legal challenge to an emergency order requiring mask-wearing in Pennsylvania public schools. It would have hobbled the initial response to COVID, and its implications for future epidemics is even worse. First, the PA legislature did not even convene in person in the early days of the pandemic and of course, that could happen again. Grimly, it is unclear under the rules of the state legislature what would constitute a quorum in a scenario where there were deaths or extremely severe illness among members of the Legislature. And the rules for remote meetings of the Legislature allow only a limited degree of deliberation and voting. There is no legislative equivalent to emergency agency rule-making power, so any pandemic legislation is subject to the regular committee process. The part-time Legislature does not have advisors of the calibre and training of the state health agency, so its ability to digest the science and frame disaster measures wisely is in doubt.
What led to this bad policy outcome? There is plenty of blame to go around. To Governor Wolf, for failure to consult early with legislative leadership and get its buy-in for his proposed measures. To the Republican leadership, whose obsession with partisan advantage apparently outweighed their interest in partnering with the Governor to reach compromises that would have balanced sound science with local economic, education and cultural concerns throughout the Commonwealth. To Pennsylvania voters, for falling for the gambit of hardwiring into its Constitution by referendum reactive measures based on a very specific set of facts, that Republican legislators were unable to secure through court challenges. The virtue of state constitutions, as we like to say to students, is that they are easier to amend than the federal constitutions. That is also their chief flaw, as this episode illustrates.
A few observations: I want to offer here a modest riposte to those who argue for weakening state legislatures. Whatever your view of their anti-majoritarian tendencies, they have multiple tools in the toolkit-- including litigation and direct democracy ploys-- as this episode also illustrates. Better, to make state legislatures better. Next, model legislation on state law for public health emergencies now being drafted by the Uniform Law Commission is likely to conflict with the newly adopted Pennsylvania constitutional provisions at least on durational elements, limiting how useful it may be as a template there. And finally, like the dog who acquires a taste for it after the first bite, there are more bills now being introduced that would limit the EO power of the Pennsylvania Governor in contexts beyond disasters and emergencies. Yet another reason this is not a self-limiting issue.
I could go on to a laundry list of both nationally relevant and Pennsylvania-specific measures to improve public health surveillance, replenish depleted emergency stockpile supplies, improve coordination among state and local health authorities, and address equity concerns, but that would require another post, so more at a later date.