Constitutional Commotion: Governor Wolf’s COVID-19 Business Mandate
By: Lindsay A. Dunn
On March 19, 2020, Pennsylvania Governor Thomas Wolf ordered closure of any “place of business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public.”
The Governor’s Order compelled the shuttering of thousands of private businesses and resulted in record unemployment claims across Pennsylvania. According to preliminary statistics posted by the Pennsylvania Department of Labor and Industry, nearly 1.1 million unemployment claims have been filed over the last three weeks, representing 16.3% of the Commonwealth’s workforce.
Representatives of Pennsylvania’s businesses and employees have initiated a class action suit against the Governor and the Commonwealth Secretary of Health, alleging violations of their constitutional right under the Fifth and Fourteenth Amendments to the U.S. and Pennsylvania Constitutions. The case is Schulmerich Bells, LLC et al. v. Wolf, 2:20-cv-01637 (E.D. Pa. March 26, 2020).
The Complaint includes allegations that, with fewer than 24 hours’ notice, members of the Pennsylvania’s business class were prohibited from using their physical locations to operate businesses, as well as being denied the ability to utilize tangible property for any economically profitable use. In addition to claims for substantive and procedural due process violations, the Plaintiffs seek just compensation under the Fifth Amendment’s Takings Clause.
Plaintiffs do not disclaim the legality of the Order’s purpose, instead stating, “Governor Wolf and Dr. Levine have acted under color of state law, and the COVID-19 Closure Orders were issued to serve a well-recognized public purpose by a duly elected state official and his designee.” For purposes of their Fifth Amendment claims, Plaintiffs’ position is strictly limited to the determination and payment of just compensation for the alleged taking. The implications of a successful Fifth Amendment claim are mind-bending – to say nothing of the potential just compensation figures for the economic havoc wreaked by the Order, practically speaking, the Pennsylvania taxpayers (and not the Defendants) would be on the hook for the damages themselves.
While the Governor has yet to file a response, the Order cites to his statutory authority under the Emergency Management Services Code, 35 Pa.C.S.§7101, et seq. to declare a state of “disaster emergency” throughout the Commonwealth in general, and “…specifically to control ingress and egress to and from a disaster area and the movement of persons within it and the occupancy of premises therein.”
However, disease is not among the disaster-related events that trigger the Governor’s authority under the Code, and even if it were, the sheer breadth of the Order’s geographical and substantive reach remains suspect. The Order ostensibly intends to designate the entire Commonwealth as a “disaster area,” and while the Code authorizes the Governor to control “disaster areas” and the movement of the public and the “occupancy of premises,” the Order does not discuss or otherwise seek to regulate the occupancy of premises – rather, it seeks to regulate the operation of activities within and upon certain premises within the Commonwealth – regardless of occupancy.
Furthermore, while the Code does authorize the Governor to “commandeer or utilize any private, public or quasi-public property if necessary to cope with the disaster emergency,” invocation of that power is specifically tied to the requirement to “provide for payment for use under terms and conditions agreed upon,” and further anticipates the physical use of private property – not the non-invasive, regulatory taking effected by the Order.
Whether the Governor will be found to have possessed the legal authority to implement the Order remains as uncertain as the duration of the Order itself, which “remain[s] in effect until further notice.”