Supreme Court Allows Pennsylvania COVID-19 Closure Executive Order to Stand

With no details or dissents, the U.S. Supreme Court denied a petition for an emergency stay of the Pennsylvania Supreme Court’s decision upholding Governor Tom Wolf’s executive order “compelling the closure of the physical operations of all businesses and entities that he deemed to be nonlife-sustaining.”

Wolf allowed non-life sustaining businesses to apply for a waiver; as of April 15, 18,746 waiver applications had been denied.

The business owners allege the executive order amounts to an unconstitutional taking and violates a number of other constitutional rights including equal protection and free speech. The governor invoked three statutory grounds for his and his administration’s authority for the executive order: the Pennsylvania Emergency Management Services Code, portions of the Administrative Code, and the Disease Prevention and Control Law.

On April 13 the Supreme Court of Pennsylvania ruled against the business owners on all of their claims. The majority concluded that the governor has broad police powers to protect the health and safety of the citizens of Pennsylvania, that the governor has the statutory authority to issue it pursuant to the Emergency Management Services Code, and the executive order didn’t violate the U.S. Constitution.

Three Pennsylvania Supreme Court justices concurred and dissented, “express[ing] concern that although the Executive Order is purported to be temporary, that may not be so for businesses unable to endure the revenue loss associated with being shut down.” These justices also expressed concern that waiver denials aren’t subject to judicial review.

The business owners filed a supplemental brief at the same time Pennsylvania responded to the initial petition. Their supplemental brief noted that on May 1 the governor “announced” he was “reopening” twenty-four counties in the state but their businesses can’t reopen as they aren’t located in those counties. They claim that this announcement reveals the executive order is unconstitutional because reopening was done based on “balancing [of] economic benefits and public health risks.” Such balancing wasn’t done in the Governor’s executive order the business owners state.

According to Pennsylvania, the business owners in this case were seeking an injunction from the Supreme Court after the lower court failed to give them one, and the legal standard to obtain an injunction is that their legal rights are “indisputably clear.” Pennsylvania argued they failed to meet this standard because “here the Pennsylvania Supreme Court properly rejected each aspect of Applicants’ challenge to the Governor’s Order based on well-established legal principles.” “Thus, to the extent it can be said the legal issues in this case are ‘indisputably clear,’ it is beyond peradventure that the Governor had authority under the Commonwealth’s inherent police power to enter the March 19, 2020 Executive Order, and that the Order was consistent with constitutional principles.”

This request went to Justice Samuel Alito who handles emergency appeals from the Third Circuit, which includes Pennsylvania. He referred it to the entire Supreme Court for consideration.