Pennsylvania Governor Wolf’s Emergency Order Tests the Bounds of Executive Authority and Creates Serious and Practical Issues for Statewide Businesses

In his March 19, 2020 Order of The Governor of the Commonwealth of Pennsylvania Regarding the Closure of All Businesses That Are Not Life Sustaining, Governor Wolf appears to be employing an expansive interpretation of his broad authority, and foreshadowing a nuanced enforcement approach, in the hope of inspiring public compliance and best practices in response to the COVID-19 outbreak. As noted in the Order, pursuant to the Emergency Management Services Code, “[t]he Governor is responsible for meeting the dangers to this Commonwealth and people presented by disasters.” 35 Pa. C.S. § 7301(a). A disaster is defined to include a “man-made disaster, natural disaster or war-caused disaster.” 35 Pa. C.S. § 7102. The Governor may address disasters through executive orders and declarations and must “indicate the nature of the disaster, the area or areas threatened and the conditions which have brought the disaster about or which make possible termination of the state of disaster emergency.” 35 Pa. C.S. § 7301(c). In addition to this exercise of the Governor’s “supreme executive power” pursuant to the statute, Pa. Const. art. IV, § 2, the Order also references the authority of the Secretary of Health under the Pennsylvania administrative code.

While very broad, the Governor’s powers are not unrestrained. The General Assembly may terminate the disaster under the statute, and the Governor must then end the state of emergency. 35 Pa. C.S. § 7301(c). Moreover, the provisions of the statute are subject to general principles of separation of powers that render the Governor powerless to generally suspend acts of the General Assembly and Pennsylvania courts. The Pennsylvania Constitution and the statute grant the Governor significant authority to respond to both man-made and natural disasters, and little case law is available to define the context and limitations of such occurrences. The Governor is limited, however, by the constitutional authority of the General Assembly and courts, the authority of the legislature expressly provided in the statute, and the potential for responsive litigation against the Commonwealth’s enforcement approach.

As a result of the foregoing, the Governor’s Order should be read in the context of these limitations on even the expansive power provided by the statute. The Order demonstrates the Governor’s clear intent to inspire voluntary compliance with a de facto shelter in place instruction – as to both social and commercial conduct. The Order purports to prohibit all persons from acting to “operate a place of business” – whether open to the public or not. The Order goes onto provide, however, that “[t]his prohibition does not apply to virtual or telework operations (e.g., work from home), so long as social distancing and other mitigation measures are followed in such operations.” In doing so, the Order appears to permit some staffing at business facilities to facilitate virtual operations provided efforts are made to combat the spread of COVID-19 of the sort applicable to all businesses (essential or non-essential) under the current guidance of the Centers for Disease Control. In addition to providing an extensive list of non-essential businesses, the Order then reveals its most clear target by noting that all restaurants and bars have been ordered to “close their dine-in facilities” while allowing delivery and take-out business subject to social distancing and mitigation efforts.

The list of life-sustaining business issued with the Order has created confusion for some businesses. For example, if a business is in a category that is not supposed to continue business operations, but that business provides critical support to a life-sustaining business (e.g., as a parts supplier), that business arguably should continue to operate. Given the uncertainty arising from the list of life-sustaining business, the Pennsylvania Manufacturers’ Association has called upon Governor Wolf to amend the order promptly to provide more clarity. In the interim, the Governor’s office has established two separate email addresses in response to the uncertainty regarding the scope of the Order. A business seeking clarification of whether the order requires it to discontinue operations can send an email to re-dcedcs@pa.gov. A business seeking a waiver can send an email to RA-dcexemption@pa.gov.

While the Order threatens “enforcement actions” against non-compliant businesses, it is not clear what actions could be taken against operations that are generally closed to the public. While the Order is likely constitutional on its face and complies with the statute (except for its lack of specificity and failure to follow a statutory 90-day expiration provision), as applied the Order could be challenged as an arbitrary exercise of police powers. Such a challenge could be made based solely on the placement of a business on the non-essential list; however, with the added context of enforcement measures taken against businesses that are engaged in reasonable mitigation efforts, a case can be made that the Order’s limitations on due process and reasonable civil liberties is unwarranted under particular circumstances. Thus, while the intent of the Order to inspire significant and protective social distancing is clear, it may be vulnerable as overbroad both on its face but, more particularly, if applied in an arbitrary and over-broad manner.