House Majority Leader Bryan Cutler (R- Lancaster), seated at right, accused the governor of bypassing the legislative process.
Commonwealth Media Services
House Majority Leader Bryan Cutler (R- Lancaster), seated at right, accused the governor of bypassing the legislative process.
Commonwealth Media Services
It’s been 77 days since Pennsylvania saw its first confirmed cases of the coronavirus and Gov. Tom Wolf signed an emergency disaster declaration to coordinate the state’s response. In the early days of the crisis, there was at least some sense of comity and cooperation between Wolf, a Democrat, and the Republican-led state legislature. The legislature authorized new funding to purchase medical equipment, waived the requirement for a school year to total 180 days, and postponed the Pa. primary election.
But as April dragged on with a business waiver process and unemployment compensation system plagued by inconsistencies and delays and as we now enter the latter part of May with millions of Pennsylvanians still under a stay-at-home order, patience in the legislature has begun to wear thin, and a confrontation over just how sweeping the governor’s executive powers are and whether there is anything the legislature can do to rein them in may soon come to a head.
On Thursday, a House committee passed a resolution that would end the governor’s emergency declaration (and the powers that come with it). While some Republicans signaled that the resolution may be able to take effect without the governor’s signature, Democrats and at least one prominent Republican have said the Constitution is clear on this issue: for resolutions to have the force of law, they require the governor’s signature or approval by a two-thirds majority.
Democrats in the legislature also argue that various Republican-led attempts to force reopening are unconstitutional infringements of the governor’s executive authority under the emergency declaration. That argument prompted Senate Majority Leader Jake Corman (R-Centre, Huntingdon, Juniata, Mifflin) to describe the governor as treating the legislature “like an unofficial advisory board, rather than a co-equal branch of government.”
What the governor’s powers are and how they interact with those of the legislature are complex questions, and, to some extent, the answers depend upon whom you ask.
In 1978, the state legislature passed a law that grants the governor the authority to determine when a disaster has occurred or is imminent and makes the governor “responsible for meeting the dangers to this Commonwealth and people presented by disasters.”
According to the statute, the emergency can last up to 90 days, at which point the governor must renew the declaration to retain emergency powers. At any time, the legislature can pass a concurrent resolution to terminate a disaster emergency, at which point “the Governor shall issue an executive order or proclamation ending the state of disaster emergency.”
Under the Disease Control and Prevention Law of 1955, the Secretary of Health is also empowered with certain authority to prevent the transmission of communicable disease.
States have broad police powers that they can use to protect the health, safety, and well-being of the people, and the legislature has given those powers to the governor via the emergencies law.
On that much, almost everyone agrees. Both the Pennsylvania Supreme Court and a federal district court have upheld the governor’s actions as lawful exercises of his emergency powers under Title 35.
“I don’t think anything that the governor has done goes beyond what is allowed under the general police power because the general police power is really quite broad,” said Dr. Jud Mathews, Professor of Law at Penn State who teaches on state and local government. “Unlike the national legislature, which has limited, enumerated powers, the state legislature can take measures to promote the health, safety, and well-being of the people subject to some constraints to be sure, but fairly loose constraints.”
Over the past few weeks, the General Assembly has passed several bills aimed at reopening certain sectors of the economy including real estate, garden centers, and hairdressers. Most of these bills have had near-unanimous support on the Republican side of the aisle, with a few Democratic votes as well.
The governor vetoed all of these measures. His veto messages have called the legislation “an infringement on the authority and the responsibility of the executive” that violates the constitutional separation of powers.
Senate Minority Leader Jay Costa (D-Allegheny) said that he believes the legislature has delegated emergency authority to the governor such that subsequent legislative attempts to direct the use of that authority — such as bills that aim to reopen certain sectors of the economy — infringe on the governor’s legal prerogatives.
“I believe that reopening [bills] are unconstitutional. And I think that we’re deferring the ability to address those issues of reopening to the governor and to the secretary [of Health] because we believe that that’s where those decisions should be made,” said Costa. “We can’t operate in that space because that space is exclusive to the governor to do what he needs to do.”
Costa said that he views the legislature’s proper role as advising the governor, based on legislators’ conversations with constituents and others. The legislature should also participate in conversations around how to allocate federal money from the CARES Act, he said. And on Friday, Senate Democrats rolled out a plan for how to use some of that money.
During House and Senate debate of the legislation that would have required the governor to allow real estate businesses to resume, Costa and House Minority Leader Frank Dermody (D-Allegheny) urged their caucuses to vote against the legislation. But after the bill passed and faced a certain Wolf veto, the two Democrats sent a letter to Wolf encouraging him to reopen the real estate industry by executive action, which he did earlier this week.
That action, in particular, smarts for House Majority Leader Bryan Cutler (R-Lancaster), who said Democratic leaders are unwilling to work with Republicans to use the legislative process as a vehicle for representing their constituents. Cutler said that Democratic leaders expressed concern about real estate open houses in their letter, but they blocked an amendment in the House that would have forbidden open houses.
Cutler noted that within a few hours of the bill’s veto, Wolf issued an executive action that addressed the same issue. “That raises some serious constitutional concerns about bypassing the legislative process,” Cutler said.
Mathews said that he understands where Democratic leaders are coming from when they say that the legislature is trying to have its cake and eat it too by delegating emergency authority and then trying to direct its use. But that, on its own, does not raise any constitutional questions for him because the legislature can always amend old laws by passing new ones.
“It strikes me that that argument is in tension with the general rule of lex posterior, which is that a later law can change an earlier law,” said Mathews. “So if the legislature were to come in and pass a law that, in some respects, whether explicitly or implicitly, changes some part of the emergency provision, they can do that. They can change their own law. We’re not looking at the constitution here; we’re looking at statutory provisions regulating the governor’s powers. I think, were the legislature to seek to change what powers the governor has, I think it probably could do that.”
But if the governor continues to veto laws passed by the legislature and the GOP cannot win enough Democratic votes to reach the two-thirds threshold necessary to override, the legislature is left with few options short of trying to end the governor’s emergency declaration.
If Title 35 and other statutes from which the governor might pull emergency authority didn’t exist, the governor would be left only with whatever inherent executive authority the governor has by virtue of the Pennsylvania Constitution. Article IV of that document vests “supreme executive authority” in the governor, but it is not entirely clear whether that term carries meaning on its own or whether it merely serves to operationalize the governor’s responsibility to execute the laws of the Commonwealth.
“Merely by saying that the ‘supreme executive power shall be vested in the governor,’ that that by itself could be used to constrain the legislature from changing laws about how the governor handles emergencies seems unlikely and places a lot of weight on these words,” said Mathews.
The state Supreme Court discussed the governor’s executive power in a 2018 case, noting: “[T]he General Assembly cannot delegate its power to make the law to any other branch of government. It is equally clear, as a corollary, that another branch cannot usurp the power of the legislature to create the law. While the principle of the separation of powers protects against excessive claims of power by any branch of government, at its foundation is that final lawmaking authority rests with the General Assembly. Therefore, any executive order that, in essence, creates law, is unconstitutional.”
That ruling drew from a 1975 case at the Commonwealth Court level (a step below the Supreme Court) involving former Gov. Milton Shapp (D), which said, “Under the Constitution of the Commonwealth of Pennsylvania ‘(a)ll power is inherent in the people’, and no person nor branch of government has any more power than is provided by that absolute framework of government.”
Those rulings suggest that uses of gubernatorial power must rest on some authorization in a statute. At present, the primary statute in use is the emergency power of Title 35.
Crystal Clark, general counsel for the Senate Republican majority, said the governor’s role is to enforce laws passed by the legislature.
“The governor’s ‘supreme executive power’ is to enforce those laws created by the legislature,” she said. “Those roles continue during an emergency declaration. Through a legislative process, the General Assembly permitted governors to do certain things that carry the force of law during an emergency. Also through a legislative process, the legislature can amend or repeal the statute which granted those powers.”
Resolutions have been introduced in both the House and the Senate that would terminate the governor’s disaster declaration, what some have called a “nuclear option.”
Cutler, the House Majority Leader, said that his caucus would discuss the issue next week. He indicated that — to the extent that the nuclear option should be preceded by less drastic measures — the legislature has already pursued most of those less drastic measures, namely passing laws. The legislature is running out of other options, Cutler said.
While the concurrent resolutions could pass on a simple majority, Republicans this week indicated it is an open question whether the governor could veto them. Article III, Section 9 of the Pennsylvania Constitution says that concurrent resolutions “shall be presented” to the governor and cannot take effect without his signature or two-thirds of the legislature voting to repass the resolution.
But through a spokesperson, Cutler pointed to a line from an April state Supreme Court ruling that says Pennsylvania’s emergency code “provides the General Assembly with the ability to terminate the order at any time” as evidence that the legislature may not need the governor’s signature on such a resolution.
Democrats have flatly rejected that argument, and so did Tom Corbett, the former Republican governor and attorney general. In a phone interview Friday, Corbett threw cold water on the idea that this type of concurrent resolution would be different than any other one, which requires the signature of the governor to carry the force of law. Corbett said that even if the resolution took effect, nothing would stop the governor from issuing a new emergency declaration.
Mathews, the law professor, agreed that the state constitution is “pretty clear” on the matter. Drawing on a 1987 Pennsylvania Supreme Court ruling, Mathews said, “It’s a formalist ruling. It says that there’s a particular form that’s required by the Constitution for concurrent resolutions to take. They’ve got to be signed by the governor, according to the Constitution. The court manages to point to that and say, ‘Sorry, you can’t evade that.’ I don’t see how that leaves room for an argument that they can evade it in this case.”
The resolution passed out of a House committee 16-9 with state Rep. Frank Burns (D-Cambria) as the only Democrat to join the 15-member Republican majority on the panel.
State Rep. Russ Diamond (R-Lebanon), who is the sponsor of the resolution in the House, said that even if Wolf were to issue a new emergency declaration, passing this termination resolution would send a powerful message.
“I wouldn’t want to be a governor who is flying in the face of the people’s direct representatives, who by majority put a resolution on his desk to stop his actions,” he said.
The resolution and its companion in the Senate could be considered as soon as next week. In the meantime, several more reopening bills remain on the legislative docket, and the tide within the GOP caucuses appears to be turning towards taking more aggressive action.
State Rep. Seth Grove (R-York) tweeted Thursday that “PA’s survival relies on the passage of concurrent resolutions” to end the disaster declaration.
And Clark, the top attorney for Senate Republicans, said the state constitution does not cede all authority to the governor just because an emergency exists.
“We still have three co-equal branches of government. Under that structure, the legislature enacts, amends and repeals legislation and the Governor enforces,” she said. “The bills that were passed by the Senate to provide clarity and consistency for employers to reopen, as well as other bills, did just that. It’s the checks and balances of government as designed by our founding fathers.”
Corbett said he understood the frustration from his fellow Republicans, but he said that the governor has to be the one to lead in emergencies.
“When you have an emergency, somebody’s got to be in charge,” said Corbett. “You can’t have 253 members of the legislature in charge.”
Corbett said that the GOP may have more leverage in upcoming budget negotiations to enact its agenda.
Elizabethtown College Associate Professor of Political Science Kyle Kopko said Republicans and Democrats appear to be inching towards a confrontation that may play out in the courts, noting that, in Wisconsin, the state supreme court struck down Democratic Governor Tony Evers’s attempt to extend a stay-at-home order, basing the decision on what they said was Evers’s failure to engage in sufficient consultation with state legislators.
While that ruling has no effect on what may be allowable under the Pennsylvania Constitution, Kopko said it could be a sign of what is to come if GOP legislators don’t feel they have a seat at the table.
“It’s probably time to have more buy-in and more conversations from other government entities,” said Kopko. “And not just the legislature — you’re seeing some feedback from county commissioners and municipal officials … I think it’s indicative of wanting to have more collaboration now and more input.”
For his part, Corbett did not defend Wolf’s performance, but he said that he recognizes Wolf is in a tough spot.
“This is unprecedented,” he said. “It’s easy to do Monday morning quarterbacking unless you’re there in the situation. All I can say is that every governor has different approaches on how to deal with an emergency.”
As for whether either side has done anything unconstitutional and whether we are in turbulent legal waters in addition to turbulent political ones, Corbett demurred.
“These are all political actions, right? If they don’t like it, they say, ‘Oh, it’s unconstitutional!’ Let’s see what happens.”