by Tom Wolpert on September 16, 2020



On September 14, 2020, federal judge William Stickman administered the coup de grace to much of Governor Wolf’s lockdown orders to combat the Covid-19 pandemic. At issue were the restrictions on gatherings and orders closing “non-life-sustaining” businesses and directing Pennsylvanians to stay-at-home. County of Butler v. Wolf, 2020 WL 5510690 (filed 9/14/2020, WD PA). Judge Stickman’s decision and order may be appealed to the Third Circuit Court of Appeals. But Judge Stickman’s well-reasoned opinion is likely to be substantially vindicated on appeal. The passage of time for the appeal process to run will strengthen the reasons to bury the PA lockdown. Even if there is a second wave of Covid-19 infections, the ‘new normal’ that Governor Wolf wanted to implement cannot likely withstand Constitutional challenge. Right or wrong, dangerous or not, you can have a Pepsi with your 25 friends in Pennsylvania. Governor Wolf can give you lecture, but not an Executive Order.

As any lawyer knows, handicapping future court decisions is hazardous. In order to explain and justify my foregoing assertions, some legal analysis is required, so here goes. This blog post will dive into County of Butler v. Wolf, but also a decision and opinion issued by the Pennsylvania Supreme Court that upheld essentially those same restrictions in April, Friends of Danny Devito v. Wolf, 227 A.3d 872 (Pa. 2020). Butler and Devito aren’t quite as inconsistent or opposed as one might think – they came to opposite conclusions, but Devito was decided in April, primarily interpreting Pennsylvania law when the Pennsylvania waiver program was just developing and the pandemic was just beginning to take hold. Butler was decided this month, after the facts of the waiver program have been subject to critical judicial review, and after the impact of the pandemic can claim to be serious, but no longer sudden. It’s one thing to briefly suspend Constitutional rights when a building is just beginning to burn down; it’s quite another to suspend the operation of Constitutional rights pertinent to that same building six months later.

Governor Wolf formed an interdisciplinary team to deal with the pandemic in March. The members of the team were employees from the Governor’s policy and planning office, did not have medical backgrounds, never developed a written purpose, kept no minutes of the meetings, and developed a decision-making model based on consensus. Once a consensus developed, a proposed form of Order was drafted and submitted to Governor Wolf for approval. Schools were closed, non-life-sustaining businesses were closed, and stay-at-home orders were issued by means of these Governor’s Orders. A waiver process, whereby business could challenge their designation as “non-life-sustaining” existed from March 19 to April 3. 42,380 waiver requests were received, 6,124 were granted, 12, 812 were denied, and 11, 636 were determined not to need a waiver. Butler at *3, n. 5.

In order to analyze any claim under the U.S. Constitution, we have to wade through the thicket of what is called ‘scrutiny’ – as in strict scrutiny, intermediate scrutiny, rational basis scrutiny, or something even more deferential than that – all designed to determine how hard the Court should look at a challenged government action. How much slack should the Court give Governor Wolf? If he’s a nice guy and means well, does that mean he can disregard the Constitution? And if so, for how long? After all, some of the people having their businesses shut down are nice people who mean well also. Of course, many of the people getting Covid-19 are also nice people – trying to determine what legal rights are applicable to a situation, based on determining who means well and who does not, is usually not a productive form of inquiry.

Everybody arguing over these rights starts with a U.S. Supreme Court case called Jacobson v. Massachusetts, 197 U.S. 11 (1905). To cut to the chase, in Jacobson the Supreme Court said that Massachusetts could make people get vaccinated against smallpox. The power of the state of Massachusetts to take emergency measures to save lives was called “police power,” and it permitted the state to issue orders or impose penalties for non-compliance concerning mandatory vaccinations that ordinarily, it could not do. Police power is why the fire department can break into your home when its on fire, or even when they think its on fire, without first obtaining a search warrant.

Even in Jacobson, the Court held that a public health measure might violate the Constitution. Saying the words “pandemic,” “public health measure” or even “saving lives” is not like sprinkling pixie dust on a legal challenge to make it dissolve forever, a point that Governor Wolf was apparently not entirely comfortable with. Ultimately, in Butler, Judge Stickman comes down on the square called ‘intermediate scrutiny.’ Any restriction imposed on the public, even in the name of public health, has to be narrowly tailored to serve a significant government interest. If the phrase ‘narrowly tailored’ has attracted your attention, (hmmm, what does that mean?), then you are ready to continue reading.

Judge Stickman gets to the point at *8, discussing how the goalposts had moved.

“What were initially billed as temporary measures necessary to ‘flatten the curve’ and protect hospital capacity have become open-ended and ongoing restriction aimed at a very different end – stopping the spread of an infectious disease and preventing new cases from arising – which requires ongoing and open-ended efforts. Further, while the harshest measures have been ‘suspended,’ Defendants [Governor Wolf and PA government] admit that they remain in-place and can be reinstated sua sponte as and when Defendants see fit.”

This is the ‘new normal’ that Governor Wolf wants us to become acclimated to – whatever he feels is necessary for public health in Pennsylvania, whenever he feels like it, then he issues an Order – and voila, we must obey. There is no plan in place to return to a situation where there are no restrictions on the citizens of Pennsylvania. Consciousness of steps the government might take to prevent the spread of Covid is the ‘new normal’ – there is no point in the foreseeable future where the power of the Governor to impose restrictions without consultation with anybody, or any other legal or legislative authority, is extinguished or even seriously restrained. Id. at *9. (To paraphrase our Governor, ‘it’s an emergency because I said it’s an emergency and it will continue to be an emergency until I tell you otherwise’).

The Pennsylvania Supreme Court validated my dim characterization of this state of affairs in Wolf v. Scarnati, WL 3567269 (Pa. July 1, 2020), finding that Governor Wolf can reissue a continued emergency declaration without the vote or approval of Pennsylvania’s legislature. Even a vote by the legislature to vitiate the emergency declaration was legally ineffective – because it wasn’t signed by the Governor! (Employing reasoning as circular as a basketball, the Pennsylvania Supreme Court has thus advised us that, theoretically, this could go on forever.)

A statute is ‘narrowly tailored’ if it targets and eliminates no more than the exact source of the evil it seeks to remedy. Judge Stickman reaches his operative point: the government’s congregate limits are not narrowly tailored. “Rather, they place substantially more burdens on gatherings than needed to achieve their own stated purpose.” Large retail operations, malls, large restaurants may allow congregants subject to occupancy restriction limits. Large protests featuring numbers far in excess of the outdoor limits of 250 and without social distancing or masks, were permitted – without any link to a single Covid mega-spreading instance. The congregate limits in Governor Wolf’s Orders are unconstitutional. Id. at *14-15.

Broad population lockdowns are unprecedented in American law. The lockdown effectuated by the stay-at-home orders is not a quarantine. A quarantine requires that the person subject to a limitation on freedom of movement be exposed to a communicable disease.   The duration of a quarantine is for a time period equal to the longest usual incubation period of the disease. “The lockdown plainly exceeded that period.” Id. at 20. For Governor Wolf and his staff to characterize this as “public health mitigation” (as opposed to calling it a quarantine) does not make it better. The lockdown is vastly more severe than even those measures which were imposed at the time of the Spanish Flu in 1918.  Even the government witnesses acknowledged that the state’s stay-at-home orders did not constitute a “quarantine.”

“The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of . . . until just this year.”

Id. at *22. You can’t be locked into your house indefinitely – there is a fundamental right to simply be out and about in public. The freedom to leave one’s house and move about at will is of the very essence of a scheme of ordered liberty, and hence is protected against state intrusions; even if the Governor means well, even if he thinks he’s saving lives with public health measures, even if he thinks his political adversaries are short-sighted and selfish.

My permanent constitutional right to leave my home is not subject to the whims of someone else’s evaluation of the pleasantness of my personality or the sincerity of my motives – not even Governor Wolf gets to make that determination, except in narrowly constrained and time-bound circumstances.  The Governor’s general desire to protect public health indefinitely is not such a constrained and time-bound circumstance.  There has to be more than a generalized risk to public health, regardless of what nomenclature is applied to that risk, to deprive Pennsylvania’s citizens of basic rights to gather or to operate their businesses.  The hospitals of Pennsylvania have not turned patients away from emergency rooms; ‘flattening the curve’ is a clever phrase which conveys a desirable medical-social outcome, not a legal argument to eviscerate basic Constitutional rights.

Judge Stickman found that the stay-at-home provisions were so egregious that they justified the highest level of scrutiny, called strict scrutiny, (which would require the law be narrowly tailored, with a compelling government interest, neither over-broad nor vague, nor over or under-inclusive; a very difficult test to meet). But even applying intermediate scrutiny, so that the law would not burden more conduct than is reasonably necessary, the Governor’s stay-at-home orders far exceeded any reasonable claim to be narrowly tailored. Even if such Orders are at this time suspended, they may be reimposed by Governor Wolf at any time. Judge Stickman observed that broad, open-ended population lockdowns “have never been used to combat any other disease.” Id. at 23. This cannot be the new normal. And so Judge Stickman rightly found them unconstitutional.

An underlying conception of our system of government is entailed in the notion that I have both the right, and obligation, to attend to my own health care concerns in a manner that meets not the Governor’s view of good health care practices, but which meets mine. There is only one kind of normal in America, or at least should be – a Constitutional normal.

Governor Wolf’s business shutdown orders pertaining to ‘non-life-sustaining’ businesses cannot be reconciled with fundamental Constitutional rights. “Never before has the government exercised such vast and immediate power over every business, business owner, and employee in the Commonwealth,” wrote Judge Stickman. Id. at 24. Even though the orders that close non-life-sustaining businesses are suspended, they can be reimposed at any time. As citizens of the United States, we have a substantive due process right to pursue a chosen occupation, subject to reasonable government regulation or occupational licensing.

Judge Stickman discusses the appropriate standards of review and comes down in favor of the standard most favorable to the government, called rational basis scrutiny. Under this forgiving standard, the government only has to show some rational relationship of its law to some legitimate end. In terms of Constitutional scrutiny, this is a test which is hard for the government to fail.

Nevertheless, the arbitrary and ad-hoc division of Pennsylvania businesses into two vague categories called ‘life-sustaining’ and ‘non-life-sustaining’ failed the rational basis scrutiny test. Governor Wolf’s policy team did not develop any definition of ‘life-sustaining’ or ‘non-life-sustaining’ and the phrases have no antecedents in Pennsylvania statute or regulation, or even in the North American Industry Classification System (NAICS). After some questioning of one of the policy team members (which is rather amusing for its demonstration of arbitrary and circular reasoning), the team member explained that one should look to the list of life-sustaining businesses to see what life-sustaining meant, and one should look to the list of non-life-sustaining businesses for an explanation of what non-life-sustaining meant. The list itself changed ten times between March 19, and May 28. But the ability for a business to ask for and receive a waiver was eliminated by the government on April 3, 2020.

Judge Stickman described the manner the polity team made their decisions as to which businesses were to be allowed to remain open, and which were compelled to close, as “shockingly arbitrary.” Id. at 28.

“But to the extent that Defendants were exercising raw governmental authority in a way that could (and did) critically wound or destroy the livelihoods of so many, the people of the Commonwealth at least deserved an objective plan, the ability to determine with certainty how the critical classifications were to be made, and a mechanism to challenge an alleged misclassification. The arbitrary design, implementation, and administration of the business shutdowns deprived the Business Plaintiffs and their fellow citizens of all three.”  Id. 

This  was true even as many ‘non-life-sustaining’ businesses wanted to sell the same products which were being sold by ‘life sustaining’ businesses. Lowes, Home Depot and Walmart remained open. Local appliance and furniture stores and salons were forced to close because they were ‘non-life-sustaining.’  (The administrative window that the owners of such stores had to challenge their categorization as ‘non-life-sustaining’ was open for such a short time as to be functionally illusory). Of course, this was exactly counter-productive; it was in the large box stores where large numbers of people could gather or pass through. What you couldn’t buy at your local appliance store or hair salon because it was deemed ‘non-life-sustaining’ and mandatorily closed by Governor Wolf’s Orders, you simply went to Walmart or Home Depot to buy.

“The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.” Id. at 31. Thank you, Judge Stickman. It can never be said often enough. There is always a crisis, always an emergency, always an argument that our basic liberties are a good idea, but today, because of today’s crisis, emergency, threat, pandemic, new normal, etc., we need to scale those liberties back, until some future, unspecified time. No thanks, Governor Wolf – respectfully, and I acknowledge you meant well, but, no thanks. The alarm bells are ringing. And as James Madison put it in 1785, “it is proper to take alarm at the first experiment on our liberties.”


The Pennsylvania Supreme Court’s Argument

The argument for such restrictions was presented by the Pennsylvania Supreme Court in Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020). The Court begins with a general recitation of Covid-19 pandemic facts as they appeared in March and April, a substantial disadvantage in comparison to Judge Stickman’s opinion issued in September. The City of Philadelphia and the City of Pittsburgh filed amicus briefs in DeVito supporting Governor Wolf’s Executive Order of March 19, 2020, which closed all businesses deemed to be non-life-sustaining. The City of Philadelphia argued that it was especially vulnerable to the rapid spread of Covid-19, given its size and population density, nor did Philadelphia think it could effectively enforce social distancing. The City of Pittsburgh argued that the rapid spread of Covid-19 would likely lead to overwhelming the health care resources available in the southwest region of Pennsylvania.

The Governor argued that selecting which businesses would close to protect against the spread of the disease, and which could remain open, required striking a balance that was a proper exercise of the state’s police power. Justice Donohue, writing for the Court, explains: “As the Commonwealth’s chief executive officer, the Governor has primary responsibility for protecting the public safety and welfare of the people of Pennsylvania in times of actual or imminent disaster where public safety and welfare are threated.” Id. at 885. Hence, the Governor is vested with broad emergency powers, pursuant to Pennsylvania statute, referred to as the Emergency Code, 35 Pa.C.S. §7101-79a31.

The Governor has the power under the Emergency Code to declare a state of disaster emergency, which continues until the Governor finds that the threat or danger has passed. The time period in Pennsylvania for such declaration is longer than most states, 90 days, and may be renewed by the Governor without approval by the legislature.

In theory, the Emergency Code gives the legislature the power to terminate the state of disaster emergency, but the PA Supreme Court considerably vitiated that power in another case, Wolf v. Scarnati, 2020 WL 3567269 (Pa. Jul. 1, 2020), holding that the Governor had to sign off on this legislative act. As Judge Stickman noted, the legal result is that absent a veto-override, Governor Wolf’s Emergency Orders can be renewed without limit. Further comment on the Constitutional circularity of this is unnecessary.

The DeVito Court goes on to describe at length the power and scope of the Commonwealth’s police powers. The Court then engages in a close review of the Emergency Code, finding that it authorized Governor Wolf’s declaration of the entire Commonwealth a disaster area. Id. at 890. Then the Court addresses whether there might be any limits to this authority, and finds none. The DeVito opinion articulates no limit to the Governor’s police power anywhere, for any reason or at any time, or for any length of time, once triggered by a pandemic.

Justice Donohue writing for the Court essentially restates the rational basis scrutiny test used for review of the Constitutionality of a governmental mandate: “But the policy choice in this emergency was the for Governor and the Secretary to make and so long as the means chose to meet the emergency are reasonably necessary for the purpose of combating the ravages of Covid-19, it is supported by the police power.” Id. at 891.

Essential to the Court’s reasoning, although not directly articulated, is that this emergency is not only life-threatening, but like almost all such emergencies, more or less time-limited by its own dynamics. The Court never considers whether or not its reasoning is good for three months, six months, a year, two years, or ten years. The nature of communicable disease is such that it may loiter within a population group for a very long time at varying levels of contagious intensity, risk to differing population groups, and communicability; but the Court simply doesn’t ponder that.  The question ‘how long?’ never seems to emerge in the Court’s reasoning.  Even the citizens of the United States of Japanese descent who were forcibly relocated to internment camps in World War II endured that state of affairs for about three years, from 1942 to 1945, and no one today suggests that those actions passed Constitutional muster. I suppose we are fortunate that Governor Wolf didn’t think anyone needed to be relocated, under mandatory court order, into a safe space on account of the pandemic. In explaining why the Emergency Code confers apparently limitless power on Governor Wolf, the Court doesn’t engage in legal argument or reference legal principles; it recites facts from the news media and internet pertinent to the risks of Covid-19.

The phrase “staggering death toll” which the Court uses is something one expects to see on the internet or on a twitter feed, but in an opinion from the Pennsylvania Supreme Court, colorful language and shock phrases ought to give way to a sober explanation of what the legal rules of the road are – how far emergency powers go, where they might end, what the limits of emergency powers are on citizens’ fundamental rights, how often they may be renewed at the Governor’s nearly unchallengeable discretion. The DeVito opinion is woefully silent on those issues. For example, by way of discussion – how about in 2021 or 2022, if a new strain of Covid-19 mixes its influence with a new strain of flu and endangers everyone over 70 years old or with preexisting health care complications? – Are the Governor’s emergency powers employable and renewable at will then?  If all the Pennsylvania Supreme Court can do is point us to the Emergency Code, then it hasn’t done its job.  The Emergency Code is a set of statutory provisions – they weigh nothing, they balance nothing.

The Court does address Constitutional challenges in its opinion, but the depth of the analysis is superficial. It explains that the Commonwealth has police powers which may be distinguished from a taking of private property pursuant to powers of eminent domain, or in a manner substantially equivalent to eminent domain, without compensation. Well, okay, we get it, the  Governor’s Orders are not regulatory takings, but that’s not really the point. None of the owners of businesses characterized as non-life-sustaining and so closed by Executive Order were clamoring for compensation from the Commonwealth; they were clamoring to open.

The Constitutional argument over procedural due process available to business owners is much more to the point, which is why Judge Stickman spent so much time on it in his opinion. Here, the DeVito court was at a distinct disadvantage; Judge Stickman in drafting his Butler opinion had the opportunity to take testimony about how the waiver program operated (really, did not operate in any effective way) after six months. The DeVito court was stuck with a much more truncated view of the facts, and at that time, in April, the waiver program did not look like the arbitrary mess it ultimately proved to be. The DeVito court notes that even when the country was at war, essential liberties remained in effect; the actual operation of the waiver program, on which the Court relies for its role in satisfying the requirements of procedural due process for business owners, was not developed in a factual record for the DeVito court to review.

The First Amendment analysis that the DeVito court undertakes is limited to a discussion of the restrictions the Governor’s Order might place on supporters of a particular political committee supporting the candidate DeVito. The broader First Amendment issues, pertinent to all citizens of Pennsylvania who are subject to a lock-down order or renewal thereof, which are essential to Judge Stickman’s opinion, were not raised by the petitioners in the DeVito litigation. It would have been nice if the DeVito court had at least presented some dicta on those issues, but courts are limited generally to the claims which the litigants bring, and one cannot criticize the DeVito court too severely because it decides what it is asked to decide and nothing else.

Chief Justice Saylor pens a worthwhile and prescient concurring and dissenting opinion in DeVito. Justice Saylor gets clearly that there are important factual issues involved in determining the validity of Governor Wolf’s executive actions, and that the Pennsylvania Supreme Court is not the best place to start developing a factual record. “At least short of martial law, however — relative to the broad-scale closure of Pennsylvania business for a prolonged period — I don’t believe the executive’s [Governor Wolf’s] determinations of propriety can go untested in the face of the present allegations of inconsistency and irrationality.” Id. At 904-905.

Justice Saylor observations are not only welcome, but indirectly raise one of the most underlying critical issues: ‘how long can this go on?’ Are a few months okay for this nearly unlimited Executive Power under the Emergency Code and pursuant to police powers? Is six months okay, if the emergency powers are suspended and renewed from time to time? Is that a prolonged period?  Is a year, or two, or three okay for a Governor’s ad-hoc assertion of emergency powers, or until Covid-19 is eradicated from the face of the planet by a miracle vaccine, or is that an excessively prolonged period? Once we have surrendered fundamental rights to the threat of a disease, how and when do we get them back?  What is our legal argument to say, ‘we get it, that there is an emergency because of a pandemic and an Emergency Code, but this has gone too far.  The Governor is not a king, even in times of emergency.’

Comments on this entry are closed.

Previous post:

Next post: