Full force of law

State-issued pandemic orders have authority

It’s a refrain that’s often heard when one of Gov. Tom Wolf’s or the state Department of Health’s COVID-19 restrictions are mentioned.

Whether it’s the requirement to wear masks inside stores or a temporary shutdown of indoor dining or capacity limits on retail businesses, a segment of the public will insist the orders have no power.

Some people will claim Wolf’s orders are just “suggestions,” not actual laws and don’t need to be followed.

According to legal experts, that’s not the case.

Emergency powers

While the repercussions for disobeying the orders so far have not been severe — law enforcement for the most part has encouraged people to follow them instead of issuing citations and fines — legal experts say the orders do, in fact, have the power and enforceability of law.

“If the claim is, ‘I don’t have to

follow the orders because the Legislature didn’t pass them,’ the answer to that is no, that is not correct,” said Michael Dimino, a professor of law at Widener University Commonwealth Law School.

Dimino said the key to understanding the governor’s COVID orders is something the legal community calls the principal of delegation. What that means, he said, is the governor has been given the power to issue orders by the state Legislature.

“The Legislature, instead of making policy directly, can give power, what we call delegated power, to the executive branch to create rules that have the force of law,” he said. “And that’s what happened here.

“Yes, the governor’s orders are not themselves passed by the Legislature. But they were passed with authority given by the Legislature to the governor.”

The power to make rules in this instance, to fight against the coronavirus pandemic, was delegated to the governor by a state statute that allows the governor to declare a state emergency.

And once an emergency is declared, that statute allows the governor to issue orders aimed at dealing with the emergency, Dimino said.

Craig Green, a law professor at Temple University Beasley School of Law, concurred with Dimino’s assessment.

Green also pointed to state statute, in particular Chapter 73 of Title 35, in explaining the governor’s ability to issue orders. That is where the governor’s powers and responsibilities during an emergency are laid out.

It reads, in part: “the governor may issue, amend and rescind executive orders, proclamations and regulations which shall have the force and effect of law.”

“The Commonwealth of Pennsylvania has said that the regulations should have the force and effect of law,” Green said. “That’s what the statutes of Pennsylvania have made the law. It makes perfect sense that that would be true.”

Green said that during an emergency having government be able to move quickly and decisively is important, which is why the Legislature bestowed the power to issue orders to the governor when it enacted that chapter of the statute in 1978.

“Gov. Wolf is performing a longstanding and explicit legal responsibility,” Green said. “Statutes the Legislature have given the governor the power and the responsibility to react.”

Green said any claim that Wolf’s orders are just suggestions or that they don’t have to be followed because they aren’t laws is simply incorrect.

“I would say the statutes of Pennsylvania say otherwise, that the statutes of Pennsylvania say the governor has the legal power and legal responsibility to keep Pennsylvania safe from disasters and emergencies,” he said. “There is no serious legal question to it.”

Health department

And it’s not just the governor who has the authority to issue orders aimed at dealing with disasters.

Joan London, an attorney with Spring Townshipbased Kozloff Stoudt Attorneys, said the Disease Prevention and Control Law that was enacted in 1955 allows the Department of Health to implement control measures to fight the spread of dangerous diseases like COVID.

And the state’s administrative code provides enforcement powers for those measures, stating the department can issue fines to those defying them.

Daniel P. Becker, managing partner at Kozloff Stoudt, said the health department’s orders can have a significant impact on businesses, particularly restaurants.

“They can take action to basically withdraw your liquor license or health license and effectively shut you down,” he said. “If you continue to operate, the department can pursue civil penalties up to $10,000 per day. So that has some teeth behind that.”

Becker said it’s important to remember that not everything the governor or Department of Health has done to fight the pandemic falls into the same category.

In some cases, he said, guidelines or recommendations have been issued. Those don’t have the same force of law.

But if an order has been issued, he said, that should be looked at in the same way as a law passed by the Legislature.

Enforcement practicalities

While it’s clear the governor’s orders have the power of law, whether people will be punished for disobeying them is another story.

“In practical terms, how much these orders are going to be enforced is uncertain,” Dimino said.

So far, the governor has relied mainly on self-adherence when it comes to

his orders. People aren’t being fined for not wearing masks in public, aren’t being hauled off to jail for hosting large holiday parties.

Local law enforcement officials — including Berks County District Attorney John T. Adams — have said they’re not planning on enforcing the mandates, but will instead try to educate the public and encourage people to comply.

There have been some exceptions, like a petition filed by the state in December asking the Commonwealth Court to issue fines to a group of restaurants, including some in Berks, that defied a temporary indoor dining ban. That case is pending.

Dimino said the governor could call for stricter enforcement, but likely won’t because it would undoubtedly result in lawsuits.

“The power is there if they want to enforce it,” Becker said. “The question is if there’s the political will to do it.”

The bar the governor or health department would have to clear to win lawsuits over COVID orders would be higher than the one for laws passed by the Legislature, Dimino said. Both have to be constitutional,

but the governor would also have to prove that his orders are within the scope of the power delegated to him and that they aren’t arbitrary and capricious.

“You have to explain the reasoning behind them,” Dimino said, adding that the Legislature doesn’t have to do that. “Just because the governor says it, it doesn’t necessarily mean it’s legal.”

The governor’s office has attempted to provide reasoning for COVID-19 orders, including providing background information and citing scientific studies when issuing them.

When asked to comment about the orders, officials from the governor’s office declined and instead referred to information posted on the governor’s website in July. The website cites the state statutes giving the governor the power to issue emergency orders, as well information on individual orders.

The website also says violations of the orders can be punishable by fines of $10 to $300 per offense. Those who don’t pay their fines can be jailed for up to 30 days.

Of challenges and outcomes

Despite the lack of aggressive enforcement of the governor’s orders, some have been challenged in court.

In once case, a group of business owners and Republican officeholders sued the governor over his spring shutdown of “non-life-sustaining” businesses and other mitigation efforts like limiting indoor and outdoor crowd sizes. A U.S. district judge in September ruled in favor of the plaintiffs.

That decision was stayed by a federal appeals court in October, meaning the restrictions were allowed to remain in place while the governor’s appeal was being considered. By that time Wolf had already eased many of his original restrictions.

In another case, a group

of restaurant owners — including six from Berks — filed suit in Commonwealth Court in December claiming a three-week shutdown of indoor dining ordered by the governor was unfair. Although in his decision Judge J. Andrew Crompton wrote that the restaurant owners did meet several criteria for granting a preliminary injunction, he concluded they did not show that the order was discriminatory.

Crompton upheld the governor’s order, in part because it was temporary. The indoor dining ban expired in early January.

Also in December, the Butler School District filed a petition in Commonwealth Court challenging an order by the governor that temporarily shut down school sports. A decision has not been rendered in that case, however the temporary ban has since expired.

There have been several other lawsuits and petitions filed challenging certain Wolf orders. Some have been thrown out and others are pending or pending appeal.

Political reaction

The reaction to Wolf’s orders has led the state Legislature to attempt to reign in the governor’s power. Not by challenging specific orders, but by limiting the power of a governor to declare an emergency in the future.

The state House and Senate have approved a constitutional amendment that would limit disaster emergencies to 21 days. If a governor wants to extend it further, it would require approval from the Legislature.

The amendment would also let the Legislature unilaterally end a disaster declaration at any time.

Currently a governor can issue a 90-day disaster emergency and extend it as needed without approval of the Legislature.

The amendment would have to be approved by voters to become law. It is expected to appear on the May primary ballot.

BEN HASTY — READING EAGLE A sign outside by the door that reads “Please Wait to be seated, Masks are required” at the Sly Fox Taphouse in Wyomissing last summer. Orders regarding masks and dining capacity at restaurants were among the powers granted to a Pennsylvania governor in the past that were exercised by Gov. Tom Wolf during the COVID pandemic.

BEN HASTY — MEDIANEWS GROUP A sign on the door, in English and Spanish, that reads “Face masks required beyond this point.” The sign represents an order by Gov. Tom Wolf from nearly a year ago that was issued as part of emergency powers granted in the past to whoever is chief executive of the state.