Pennsylvania Gov. Tom Wolf’s shutdown orders in response to COVID-19 violate the right to assembly under the First Amendment and the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, a federal judge ruled.
Although mitigation efforts were enacted with good intentions, “even in an emergency, the authority of government is not unfettered,” U.S. District Judge William Stickman IV wrote in his September 14 decision.
The plaintiffs, including small businesses, county governments, and individuals, challenged restrictions on economic activity such as capacity limitations and shutdown orders on “non-life sustaining’ businesses. The plaintiffs did not contest the state’s mask mandate.
“The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in trouble,” Stickman wrote. “There is no question that this country has faced, and will face, emergencies of every sort.”
Governments must follow the rules even if it prevents them from doing things they consider essential.
“The Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures,” Stickman wrote.
Governors across the country are having to defend their executive orders against numerous lawsuits, and some state laws are being challenged as well. The Pennsylvania case is notable because the judge’s decision considers the orders on constitutional grounds and could have implications beyond Pennsylvania’s borders.
“States are now on notice that courts are not going to rubber-stamp any action they take,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of Cato Supreme Court Review.
The Pennsylvania government argued the issue was moot because many of the state’s businesses have reopened, but there is much more at stake, says Shapiro.
“The issue may be moot, but this is also one of those quintessential issues that are ‘capable of repetition but avowing review,’ so the mootness issue isn’t clear-cut,” Shapiro said.
The decision should put state legislators on notice as well as governors, says Shapiro.
“Legislatures shouldn’t be giving governors carte blanche,” said Shapiro. “Particularly where ‘emergency’ measures are unpopular, do legislators interested in reelection really want to be saddled with ‘owning’ everything the executive branch does when they could be exercising oversight and imposing limits on those actions?”
Procedural checks and balances are particularly important in states where both chambers of the legislature and governorship are controlled by one party.
“In states where the executive actions are popular, then legislatures have little incentive to enforce the separation of powers under their state constitutions,” said Shapiro.
On September 9, the Supreme Court of Michigan grilled Gov. Gretchen Whitmer’s administration in response to a directive by U.S. District Judge Paul Maloney. Maloney requested clarification on state law regarding executive authority before he hears a case challenging the governor’s orders.
Justice Richard Bernstein, a Democratic appointee, questioned the administration’s attorney on timing.
“Once rights are forfeited or once rights are taken, they’re difficult, if not impossible, for people to reclaim them or get them back,” said Bernstein. “Who decides when it comes to an end?”
In both the Pennsylvania and Michigan cases, attorneys representing the governors argued the cases are moot because many businesses are now open.
The Wolf administration is expected to ask for delayed enforcement while it appeals Stickman’s ruling.
“I will continue to do what is necessary to keep people safe and contain the virus,” After the ruling, Wolf stated after the ruling.
Rights and Responsibilities
Governors have to follow the law like anyone else, especially when it comes to something as restrictive as a shutdown, says James Taylor, president of The Heartland Institute, which co-publishes Health Care News.
“The restrictions on liberty that have been imposed by government-mandated lockdowns would have been unthinkable just a year ago,” Taylor said. “Six months after the lockdowns began, the coronavirus pandemic is no longer in an ’emergency’ stage that necessitates governors or other executive branch government officials acting immediately and unilaterally to lock down society and restrict freedoms without legislative authorization—assuming such a justifying emergency actually existed in the first place. We are a nation of laws, not kings or dictators, and no man is above the law—not even a governor.”
Stickman alluded to that point in his decision, Taylor says.
“The federal court properly noted that ‘good intentions toward a laudable end are not alone, enough to uphold governmental action against a constitutional challenge,’” said Taylor. “Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable and the intent is good—especially in time of emergency.”
Most important is the constitutional foundation of the decision, Taylor says.
“The court properly observed that the lockdowns are ‘such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional,’” Taylor said.
AnneMarie Schieber (firstname.lastname@example.org) is managing editor of Health Care News.