Ballard Spahr LLP

Private citizens have separately challenged Governor Tom Wolf’s COVID-19 executive orders as unconstitutional takings in federal district court and in the Pennsylvania Supreme Court. Learn more about those cases here: Friends of Danny DeVito v. Wolf and Schulmerich Bells, LLC et al. v. Wolf, Case 2:20-cv-01637. The battle over the Governor’s authority to issue these orders continued last week as the Pennsylvania Senate and House of Representatives adopted a concurrent resolution, H.R. 836, seeking to override the Governor’s Proclamation of Disaster Emergency. On June 10, Senators Scarnati and Corman and the Senate Republican Caucus filed Scarnati v. Wolf  in Commonwealth Court to enforce H.R. 836. Two days later, the Governor brought his own suit in the Pennsylvania Supreme Court, requesting that the court declare H.R. 836 a legal nullity.

The current dispute concerns the separation of powers between Pennsylvania’s executive and legislative branches. Both parties rely heavily on the Supreme Court’s recent opinion in Friends of Danny DeVito v. Wolf. DeVito held that Governor Wolf’s emergency orders were a valid exercise of the police power, but the majority observed that “as a counterbalance to the exercise of the broad powers granted to the Governor, the Emergency Code provides that the General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.”

In its suit, the legislature invokes DeVito in an effort to terminate the state of disaster and reclaim COVID-19 authority for itself. In response, Governor Wolf relies on DeVito to support his request for immediate judicial intervention by the Supreme Court through its King’s Bench authority, warning that this inter-branch conflict has caused life-threatening public confusion as to whether the COVID-19 disaster continues in Pennsylvania. The Governor goes on to argue that H.R. 836 violates the Presentment Clause of the Pennsylvania Constitution and its separation of powers principles because the resolution was never submitted to the executive branch for signature or veto.

It remains to be seen whether the Supreme Court will again exercise its King’s Bench powers (as it did in DeVito) to address COVID-19 issues. For now, parties and potential litigants should be prepared for ongoing uncertainty over the scope of executive power in the COVID-19 era.