On July 1, in Wolf v. Scarnati, a divided Supreme Court of Pennsylvania rejected House Resolution 836, in which the Commonwealth’s General Assembly attempted to terminate Governor Tom Wolf’s Proclamation of Disaster Emergency. [Read more about the background of this case here.] For the second time during the pandemic, the court invoked its seldom-used King’s Bench Powers to exercise jurisdiction, as it had in April in Friends of Danny DeVito v. Wolf. [Read more about that case here.] In so doing, the court demonstrated its continuing interest in promptly resolving fundamental issues related to COVID-19.

The underlying legal issue was the court’s interpretation of the Emergency Management Services Code, 35 Pa. C.S. Section 7301(c), under which Gov. Wolf issued the Proclamation to which the General Assembly responded with H.R. 836. The court held that H.R. 836 is a “legal nullity” because Section 7301(c) requires concurrent resolutions to be “presented” to the Governor for approval or veto. The General Assembly did not do so.

Writing for a four-justice majority, Justice David Wecht expressed no opinion on the competing policy considerations regarding COVID-19 that gave rise to H.R. 836. Instead, the majority based its decision on separation of powers principles, holding that, in Section 7301(c), “[t]he General Assembly itself decided to delegate power to the Governor . . . Current members of the General Assembly may regret that decision, but they cannot use an unconstitutional means to give that regret legal effect.”

In a concurring and dissenting opinion, Justice Kevin Dougherty agreed that H.R. 836 violated the presentment requirement. But unlike the majority, he would have held that Section 7301(c) violates the Pennsylvania Constitution by creating a new exception to the presentment requirement. In a dissenting opinion joined by Justice Sallie Updyke Mundy, Chief Justice Thomas G. Saylor would have upheld H.R. 836.

The court’s decision definitively resolves the scope of Gov. Wolf’s authority to renew or extend his Proclamation of Disaster Emergency, ensuring the Proclamation will remain in effect until terminated by the Governor. The Governor’s authority to issue particular emergency orders under that Proclamation, however, remains subject to unresolved constitutional challenges (including under the Takings Clause of the Fifth Amendment). [Read more about one such case still pending in the Eastern District of Pennsylvania here.]