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From the archives 2020

Pa. businesses are challenging Gov. Tom Wolf’s emergency powers. So far, Wolf’s winning.

by Angela Couloumbis of Spotlight PA |

Wolf signed a disaster emergency declaration on March 6, as Pennsylvania reported its first cases of the coronavirus.
Commonwealth Media Services

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HARRISBURG — It’s been a little more than 24 hours since Gov. Tom Wolf directed schools to remain closed and imposed a stay-at-home order on residents in the counties hit hardest by the coronavirus — and less than a week since he took the unprecedented step of closing all but “life-sustaining” businesses.

The governor’s emergency powers, which he says are firmly supported by state law, have sparked criticism from some Republicans and business sectors, while also giving rise to lawsuits contending that Wolf has overstepped his authority under the state Constitution.

But while the administration has made some minor course corrections, such as amending the list of which businesses must close and granting waivers upon request, Wolf’s authority remains intact. The governor is likely to continue to take aggressive measures to slow the spread of COVID-19.

“We are living in a time unlike any other,” Wolf said earlier this week, adding: “Most of us have not experienced a disruption in daily life of this type ever before. … We will not come out of this unscathed.”

One of the lawsuits challenging Wolf’s authority has been withdrawn, and the state’s highest court has declined to hear the other on an emergency basis. A third, also before the state Supreme Court, is pending.

That case focuses on Wolf’s decision to shut down a broad range of businesses. It challenges everything from how the governor drew up the list of which businesses can remain open to the waiver process his administration has created to appeal closures.

“It is arbitrary, capricious, and vague,” said Marc A. Scaringi, a Harrisburg-based lawyer who is suing on behalf of several businesses as well as a political campaign that had to shut its office down.

At the heart of the challenges: the expanded powers Wolf has claimed under the disaster emergency declaration he signed on March 6, as Pennsylvania reported its first cases of the coronavirus.

When Wolf declared the emergency, he activated a section of the state’s emergency management law that gives a governor broad powers to deal with a crisis. Among them: limiting travel, ordering evacuations, designating routes for an exodus, commandeering private property, and limiting or outright halting liquor and firearm sales.

The law also allows him to control the “ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.”

That is the section — along with other powers given to the administration to stem the spread of illness under the state’s Disease Prevention and Control Law — that Wolf’s advisers say gives the governor the authority to shut down schools and even command businesses to close.

Still, his powers are not unlimited, even in an emergency. Aside from lawsuits, the state legislature could at any time rescind the disaster declaration, which is in effect for 90 days — although few expect that will happen.

Some of Wolf’s challengers, including Scaringi, have questioned whether a disease qualifies as a disaster. Bruce Ledewitz, a professor of law at Duquesne University, said it would be difficult to convince the courts that the coronavirus outbreak, with its potential to overwhelm hospitals with sick patients, is not a disaster.

“It is also hard to imagine that the courts, in the middle of this crisis, would rule that what Wolf is doing is illegal,” Ledewitz.

Ledewitz noted that enforcement of the governor’s orders has not been strict. That may work in his favor in fending off court challenges, which require someone to show harm. Indeed, the Pennsylvania State Police on Wednesday said it had issued 44 warnings to businesses that remained open despite the governor’s directive. But the agency did not actually cite or fine anyone, and said most businesses were voluntarily complying.

Wolf has implemented no-visitor policies at correctional facilities and nursing homes statewide. The governor’s office also has closed state government offices and ordered non-essential employees to work from home.

On Monday, his administration said schools will remain shut down at least until April 6. And he imposed a stay-at-home order on residents in Allegheny, Bucks, Chester, Delaware, Monroe, Montgomery, and Philadelphia Counties, telling them to stay at home unless they need groceries, medicine, or other items necessary for survival. On Tuesday, he added Erie County to the list.

The governor did not rule out further restrictions if the virus continues its unrelenting spread. On Wednesday, state health officials reported 276 new cases, bringing the statewide total to 1,127.

Still, Wolf’s order closing businesses that do not provide “life-sustaining” services has been revised and refined multiple times since late last week, when he first announced it. Initially, he relaxed it to allow accountants, tax preparers, manufacturing supply companies, and some lawyers to resume operations. Laundromats and dry cleaners were also allowed to reopen.

On Tuesday, he made another round of refinements to the list of businesses that can remain open. Among them: gun stores, which will now be able to reopen for sales, with some restrictions.

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