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Two for the price of one: Pair of proposed amendments to state constitution head to Pa. House

Bid to limit governor's emergency powers is attached to racial equality amendment

  • Benjamin Pontz
The Pennsylvania State Capitol building on Monday, June 22, 2020.

 Courtesy Gov. Tom Wolf's Flickr page

The Pennsylvania State Capitol building on Monday, June 22, 2020.

Courtesy Gov. Tom Wolf's Flickr page

The Pennsylvania State Capitol building on Monday, June 22, 2020.

Against the backdrop of a clash between Gov. Tom Wolf and the GOP-led state legislature that has reached the Commonwealth’s highest court as well as statewide protests in support of the Black Lives Matter movement, a pair of constitutional amendments — one addressing emergency powers, the other addressing racial equality — has passed the Pennsylvania Senate and awaits consideration in the House of Representatives.

To amend the Pennsylvania Constitution, a resolution must pass both chambers of the legislature by simple majority in consecutive legislative sessions and then, after being advertised in newspapers in every Pennsylvania county, be approved by voters as a ballot question.

It is a high bar. Dozens of proposed amendments are introduced each year in the legislature, but far fewer actually pass one or both chambers once, let alone in consecutive legislative sessions, according to data compiled by Duquesne University Law School.

That is to say that it is fairly noteworthy that the Pennsylvania Senate passed by Senate Bill 1166 earlier this month. What is particularly notable, though, is that the bill contains two separate and distinct amendments in one.

  • The first amendment would require legislative approval for a disaster emergency declaration to last longer than 30 days.
  • The second would guarantee that equality of rights under the law not be denied or abridged on the basis of race or ethnicity.

Constraining the governor’s authority during emergencies has been a priority of Republicans throughout the pandemic. When that was the only component to the resolution, it passed in committee along party lines. On the floor of the full Senate, though, Sen. Vincent Hughes (D-Montgomery & Philadelphia) proposed a second amendment be included in the resolution, the need for which he said recent incidents of police brutality had laid bare. Hughes’s amendment would forbid discrimination under the law on the basis of race and ethnicity, and senators were unanimous in voting to add it to the emergency powers amendment.

If the amendments were to eventually reach the ballot, they would do so separately, meaning that a voter could theoretically vote for one and not the other. But in the legislature, packaging the two together may explain the broad bipartisan support the underlying bill received. When it came time to vote on the entire bill, it passed 44-6.

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Preventing that type of logrolling is exactly why the Pa. Constitution has a separate provision requiring that legislation be limited to a single subject, a principle commonly known as the “single subject rule.” But that rule does not apply to resolutions proposing constitutional amendments, said Michael Dimino, a professor of law at Widener University Commonwealth. Neither he nor Bruce Ledewitz, a law professor at Duquesne University who directs the law school’s project on the Pennsylvania Constitution, could recall an example where two constitutional amendments had been proposed in a single package like this. But Ledewitz said Article 11 of the Pennsylvania Constitution, which details the process for amendments, hints that this approach may be just fine because it states that “when two or more amendments shall be submitted they shall be voted upon separately.”

The next stop for the amendments is the House State Government Committee, where Chairman Garth Everett (R-Lycoming) said he has “no specific plans at this point” to consider them.

Ledewitz said that the emergency declaration amendment strikes him as the type of amendment that might make it through both chambers in one session but may not have legs in a second session.

“Cooler heads will prevail, and it won’t seem so pressing. It’ll go to the back burner. This is the perfect example of one that might not pass next time,” he said.

Wolf has repeatedly defended his ongoing use of emergency powers. His press secretary, Lyndsay Kensinger, said only that the administration is “monitoring” the proposed amendments.

Emergency powers have formed the basis of much of the governor’s work to respond to the coronavirus including suspending evictions and utility shutoffs, allowing doctors from other states to practice in Pennsylvania, and, at least in part, closing businesses. Whether the business closure orders and the governor’s phased reopening plan could continue without emergency powers is a question currently before the state Supreme Court. But declaring an emergency gives the executive branch flexibility to respond to a crisis, and under the proposed constitutional amendment, that flexibility would end after 30 days unless the legislature passes a resolution agreeing to an extension.

Supporters of the amendment say that recalibrating checks and balances in times of emergency is important no matter what happens in the current dispute.

“A proposed constitutional amendment is what I consider the long game. It is a serious and dramatic remedy for when the operating principles of state government diverge too far from the checks and balances that are central components to our system,” said Sen. Lisa Baker (R-Luzerne), who was a top staffer during the Ridge and Schweiker administrations and assisted them in responding to emergencies. “It is time for the legislative branch to have a shared responsibility to help the people of Pennsylvania prepare, recover, and respond to emergencies.”

“Through this pandemic, we have shown that there are gaps in our ability to govern during these times,” said Sen. Lisa Boscola (D-Lehigh & Northampton). “Allowing for a more regular voice of the legislature during these times will reassure people that the decisions are not as partisan and that many voices are being heard. In the end, though, what I like about the constitutional amendment is that it leaves power to the people to make decisions about what they want to happen during these extraordinary times.”

The potential implications of the amendment outlawing racial discrimination are less clear. The Pennsylvania Constitution already forbids state government from discriminating “against any person in the exercise of any civil right,” and the Fourteenth Amendment to the U.S. Constitution already guarantees equal protection and due process under the law.

The existing language in the state constitution has been analyzed by both state and federal courts largely the same way as the Fourteenth Amendment. But, because Pennsylvania’s Constitution enumerates specific rights, such as education, the anti-discrimination language it contains can underpin legal challenges alleging unequal treatment in more policy areas. In 2012, for example, a court ruled that a claim that the revocation of the charter for a charter school that served primarily students of color was discriminatory could proceed under the state constitution, but not the federal constitution.

On the floor of the Senate, Hughes said the amendment would legally enshrine ideals that have never been fully realized.

“It is clear to anyone and everyone that discrimination based on race is cooked into the DNA of this nation,” said Hughes. “It is reflected in our long and troubling history in Pennsylvania, reflected in the documents that are the foundation of this nation, reflected in how we educate our children, how we lend money, how we provide housing … how we hire people, how we provide health care, and, most recently and most in our face, how we police, how we protect communities. The need for additional protections are based on that history. The need to advance those protections are based on understanding the DNA, the long-troubling history, and the reality that exists in this nation right now.”

Hughes’s office said that on an issue as important as prohibiting race-based discrimination, Pennsylvania’s Constitution ought to be clear because “state constitutional provisions interpreted by state courts often provide greater protections than similar federal constitutional provisions interpreted by federal courts.”

The language of the proposal mirrors that of the Equal Rights Amendment, a proposed amendment to the U.S. Constitution to outlaw discrimination on the basis of sex that Pennsylvania ratified and added to its own constitution in 1971.

In Pennsylvania, that amendment has been the subject of litigation over access to school sports, car insurance rates, and employment benefits. But it does not give private citizens the ability to sue private employers for sex discrimination, the Pennsylvania Superior Court found in 2008.

In other words, the Pennsylvania constitution’s prohibition on sex discrimination does not “circumscribe, prohibit, or limit the conduct of private citizens or private entities,” so an amendment prohibiting racial discrimination likely would not affect private entities in areas where there is not separate legal justification prohibiting discrimination.

Dr. Jessie Ramey, Director of the Women’s Institute at Chatham University in Pittsburgh, said in an email that in addition to specific legal protections, equal rights amendments provide “symbolic and cultural significance.”

Hughes argued that the amendment transcends symbolism. Pointing to Trump judicial nominees that, he said, have a “track record of discrimination,”  Hughes said that federal courts may not be equipped to protect Pennsylvanians’ civil rights, which ought to heighten the urgency of this amendment at the stat level.

“It’s been offered up, it’s presented to us, and it stares us directly in our face every day, every hour,” said Hughes. “We must seize these protections, we must secure these protections at all costs.”

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