Wolf., T. v. Scarnati, J.Wolf., T. v. Scarnati, J.
JUSTICE WECHT DECIDED: July 1, 2020
Our government‘s response to the challenges presented by the COVID-19 pandemic has engendered passionate arguments that span the political spectrum. Pennsylvanians have watched with great interest as the political branches of our Commonwealth‘s government, represented by the Governor and the General Assembly, have debated how best to respond to this novel coronavirus. In light of the intense public interest in this issue, and because “[s]unlight is said to be the best of disinfectants,”1 we find it necessary to make clear what this Court is, and is not, deciding in this case. We express no opinion as to whether the Governor‘s response to the COVID-19 pandemic
I. The Governor‘s Proclamation of Disaster Emergency
On March 6, 2020, in response to the COVID-19 pandemic, Governor Tom Wolf issued a Proclamation of Disaster Emergency (“Proclamation“)2 pursuant to
(c) Declaration of disaster emergency.--A disaster emergency shall be declared by executive order or proclamation of the Governor upon finding that a disaster has occurred or that the occurrence or the threat of a disaster is imminent. The state of disaster emergency shall continue until the Governor finds that the threat or danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist and terminates the state of disaster emergency by executive order or proclamation, but no state of disaster emergency may continue for longer than 90 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency. All executive orders or proclamations issued under this subsection shall 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. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and, unless the circumstances attendant upon the disaster prevent or impede, shall be promptly filed with the Pennsylvania Emergency Management Agency and the Legislative Reference Bureau for publication under Part II of Title 45 (relating to publication and effectiveness of Commonwealth documents).
On March 19, 2020, consistent with his earlier declaration of a disaster emergency, the Governor issued an order closing businesses that were not considered life-sustaining.4 Four Pennsylvania businesses and one individual challenged the Governor‘s Order, alleging that it violated the Emergency Management Services Code and various constitutional provisions. On April 13, 2020, in an exercise of our King‘s Bench jurisdiction, see
On June 3, 2020, the Governor renewed the Disaster Emergency Proclamation for an additional ninety days.5 On June 9, 2020, the Pennsylvania Senate and the
Whereas, pursuant to Section 12 of Article I of the Constitution of Pennsylvania, the power to suspend laws belongs to the legislature; and
Whereas, 35 Pa.C.S. § 7301(c) authorizes the General Assembly by concurrent resolution to terminate a state of disaster emergency at any time; and
Whereas, 35 Pa.C.S. § 7301(c) provides that upon the termination of the declaration by concurrent resolution of the General Assembly, “the Governor shall issue an executive order or proclamation ending the state of disaster emergency“;
Therefore be it
Resolved (the Senate concurring) that the General Assembly, in accordance with 35 Pa.C.S. § 7301(c) and its Article I, Section 12 power to suspend laws, hereby terminate[s] the disaster emergency declared on March 6, 2020, as amended and renewed, in response to COVID-19; and be it further
Resolved, that upon adoption of this concurrent resolution by both chambers of the General Assembly, the Secretary of the Senate shall notify the Governor of the General Assembly‘s action with the directive that the Governor issue an executive order or proclamation ending the state of disaster emergency in accordance with this resolution and 35 Pa.C.S. § 7301(c)[.]
H.R. Con. Res. 836, 2020 Gen. Assemb., Reg. Sess. 2019-20 (Pa. 2020) (capitalization modified).6 On June 10, 2020, the Secretary of the Senate informed the Governor of the concurrent resolution, writing: “I am notifying you of the General Assembly‘s action and
On June 11, 2020, Senate President Pro Tempore Joseph B. Scarnati, III, Senate Majority Leader Jake Corman, and the Senate Republican Caucus (collectively, the “Senators“) filed a Petition for Review in the Nature of a Complaint in Mandamus in the Commonwealth Court, seeking to enforce H.R. 836. See Scarnati v. Wolf, 344 MD 2020. One day later, the Governor filed in this Court an Application for the Court to Exercise Jurisdiction Pursuant to Its King‘s Bench Powers and/or Powers to Grant Extraordinary Relief. On June 17, 2020, we granted King‘s Bench jurisdiction and stayed the Commonwealth Court proceedings. Order, 104 MM 2020, 6/17/2020.
In his Application, the Governor argues that this Court should declare H.R. 836 null and void under the Declaratory Judgments Act,
This dispute concerns whether the concurrent resolution is subject to the presentment requirement embodied in the Pennsylvania Constitution. In common
First, we grant the Application of Representative Bryan Cutler and House Republican Caucus for Leave to Intervene as respondents. Representative Cutler and the House Republican Caucus (collectively, the “Representatives“) state that their “interests . . . are aligned with the Senate respondents.” Id. at ¶ 12. Additionally, the Representatives note that they “will adopt and join in the Petition for Review filed by the Senate respondents and the” Senators’ Brief. Id. at ¶ 14. Thus, we deem the Representatives to have joined the Senators’ brief, rather than intending to file a separate brief with this Court. See
Second, we grant the Senators’ Application for Leave to File Reply Brief. Although the Senators are the respondents in this Court, we grant the application as a supplemental brief. For convenience, we refer to this document as the “Senators’ Reply Brief.”
Third, we grant the various applications for leave to file briefs as amici curiae. See Application of SEIU HealthCare Pennsylvania for Leave to Participate as Amicus Curiae; Application for Leave to File Brief as Amici Curiae by Members of the Democratic Caucuses of the Pennsylvania House of Representatives and Senate of Pennsylvania; Application of the Keystone Research Center and the Pennsylvania Budget and Policy Center for Leave to Submit Amici Curiae Brief Nunc Pro Tunc in Support of Petitioner; Application for Leave to File Amicus Brief by the Coalition for Affordable Utility Service and Energy Efficiency in Pennsylvania, et al.; Application for Leave to File Amicus Curiae Brief on Behalf of the Commonwealth Foundation for Public Policy Alternatives; Application for Leave to File Amici Curiae Brief on Behalf of the Commonwealth Partners Chamber of Entrepreneurs, et al.
Fourth, we deny the Senators’ Application for Leave to Present Oral Argument. This case involves a discrete legal issue, and there are no factual disputes. The parties, as well as amici, have provided ample and thoughtful briefing, and, because the subject matter of this case implicates constitutional questions concerning separation of powers as well as the effectiveness of legislative action relative to a rapidly evolving situation, it must be decided without unnecessary delay.
Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.
A. The Exceptions to Presentment
The first exception to presentment is obvious from the plain text of Article III, Section 9. Any concurrent resolution “on the question of adjournment” need not be presented to the Governor. No party avers that H.R. 836 involves adjournment.
The second exception to presentment is a concurrent resolution proposing a constitutional amendment. The Constitution itself, specifically Article XI, Section 1, provides the “complete and detailed process for the amendment of that document.” Kremer v. Grant, 606 A.2d 433, 436 (Pa. 1992). We have characterized the process of amending our Constitution as “standing alone and entirely unconnected with any other subject. Nor does it contain any reference to any other provision of the constitution as being needed . . . . It is a system entirely complete in itself; requiring no extraneous aid, either in matters of detail or of general scope, to its effectual execution.” Commonwealth ex rel. Att‘y Gen. v. Griest, 46 A. 505, 506 (Pa. 1900). Because “submission to the governor is carefully excluded, . . . such submission is not only not required, but cannot be permitted.” Id. at 507; see also Mellow v. Pizzingrilli, 800 A.2d 350, 359 (Pa. Cmwlth. 2002) (“Article XI has vested the power to propose amendments in the General Assembly. Other than the express requirements set forth in Article XI, the procedure to be used in proposing such amendments is exclusively committed to the legislature.“). No party argues that H.R. 836 is a proposed amendment to our Commonwealth‘s Constitution.
The third exception to presentment is not explicitly delineated, but rather inheres in the structure of our Charter. The presentment requirement in Article III, Section 9 applies only to matters governed by constitutional provisions concerning the legislative power. Griest, 46 A. at 508. In other words, “it is perfectly manifest that the orders, resolutions, and votes which must be so submitted [to the Governor] are, and can only be, such as relate to and are a part of the business of legislation.” Id. Although no provision of the Constitution explicitly withdraws non-legislative resolutions from the requirement of presentment, such resolutions involve only internal affairs of the legislature. “Under the principle of separation of the powers of government, . . . no branch should exercise the functions exclusively committed to another branch.” Sweeney v. Tucker, 375 A.2d 698, 705 (Pa. 1977). The legislature, a co-equal branch of government, has “the sole authority to determine the rules of its proceedings.” Pa. AFL-CIO ex rel. George v. Commonwealth, 757 A.2d 917, 923 (Pa. 2000); see also
As the Governor notes, “[i]n Russ v. Commonwealth, 60 A. 169 (Pa. 1905), this Court explained the difference between resolutions that solely involve internal matters within the General Assembly and those that reach beyond the walls of its two chambers.” Governor‘s Application at 17. In Russ, the General Assembly passed a resolution that allowed members of the Senate and the House of Representatives to attend a ceremony dedicating a monument to President Ulysses S. Grant and provided for expenses associated with the ceremony. In distinguishing between resolutions that involved only the internal affairs of the General Assembly and those with legal effect that require presentment, we wrote:
If both houses had simply resolved to attend the exercises in a body, and to adjourn for a day for that purpose, it would have been no concern of the Governor, and they could have gone with or without his approval; but, if more was embodied in the resolution, amounting practically to an enactment authorizing special committees of the Senate and House to act on behalf of the state in making suitable the recognition which both branches of the Legislature had agreed upon, it was for the Governor to approve or disapprove.
Russ, 60 A. at 171. Thus, when the legislature seeks to “act on behalf of the state” by way of a concurrent resolution, that resolution must be presented to the Governor. Id.
Summarizing Russ and Griest in 1915, Attorney General Francis Brown opined:
[N]ot all joint or concurrent resolutions passed by the legislature must be submitted to the Governor for his approval, but only such as make legislation or have the effect of legislating, i.e., enacting, repealing or amending laws or statutes or which have the effect of committing the State to a certain action or which provide for the expenditure of public money. Resolutions which are passed for any other purpose, such as the appointment of a committee by the legislature to obtain information on legislative matters for its future use or to investigate conditions in order to assist in future legislation, are not required to be presented to the Governor for action thereupon.
Joint or Concurrent Resolutions, 24 Pa. D. 721, 723 (Pa. Att‘y Gen. 1915); see also Concurrent Resolutions, 7 Pa. D. & C. (Pa. Att‘y Gen. 1926) (embracing Attorney General Brown‘s opinion). We find that Attorney General Brown‘s formulation accurately relates the requirements of our Constitution and precedent. Specifically, we agree that whether a concurrent resolution requires presentment depends upon whether the resolution comprises legislation or has the effect of legislating.
Attorney General Brown correctly discerned that, when a court has to determine whether a concurrent resolution is an act of legislating, the court must look to the substance of that resolution, rather than adhering to a formulaic approach that confines the court to the title or label of the resolution. As the Governor‘s amici note, when the federal Constitutional Convention added a provision to the federal Constitution analogous to Article III, Section 9, see
The Senators do not dispute that resolutions with legal effect should be subject to presentment. See Senators’ Brief at 23 (“In the practice of the Pennsylvania Legislature, bills and joint resolutions intended to have the effect of laws have been transmitted to the Governor for his approval.“) (quoting CHARLES B. BUCKALEW, AN EXAMINATION OF THE CONSTITUTION OF PENNSYLVANIA 94 (1883)). Rather, the Senators contend that neither the Governor‘s Proclamation nor H.R. 836 had legal effect, and, thus, H.R. 836 should not be subject to presentment.
Looking first to the Governor‘s Proclamation, it is obvious that this order had legal effect. The Proclamation transferred funds, suspended certain statutory and regulatory provisions, and activated the Pennsylvania National Guard. See Governor‘s Application at 26-27 (listing actions taken by various state agencies pursuant to the Proclamation). As we stated in Friends of Danny DeVito, “[t]he Emergency Code specifically recognizes that under its auspices, the Governor has the authority to issue executive orders and proclamations which shall have the full force of law.” Friends of Danny DeVito, 227 A.3d at 892. The Proclamation had “the full force of law.” Id.
The Senators claim that the Proclamation was merely “a declaration of fact” and “did not (and could not) prescribe the rules of civil conduct and, instead, established the
Turning to H.R. 836, the Senators argue that this resolution “does not provide for expenditure of public funds and does not commit the state to an affirmative act.” Id. at 30. With regard to the expenditure of public funds, we have ruled that a concurrent resolution which spends public money requires presentment. For example, in Russ, we decided that, had the General Assembly simply adjourned to attend the ceremony in question, the resolution would not have required presentment. Yet, when the legislature committed public money to the ceremony, the Governor‘s approval (or a vote overriding a veto) became necessary. Russ, 60 A. at 171. Similarly, in Scudder v. Smith, 200 A. 601 (Pa. 1938), we determined that a joint resolution required presentment because the resolution both created a commission and appropriated $5,000 for that commission. Id. at 602-04. But while the expenditure of funds is a sufficient condition for requiring presentment, it is not a necessary one. See Joint or Concurrent Resolutions, 24 Pa. D. at 721 (opining that resolutions “which have the effect of committing the State to a certain action or which provide for the expenditure of public money” require presentment)
Effectively acknowledging a non-expenditure-based category of legislative resolution, the Senators aver that, because H.R. 836 “does not authorize any action on behalf of the state,” Senators’ Brief at 31, the resolution was not a legislative action. Although in Russ we noted that a resolution authorizing the General Assembly “to act on behalf of the state” would require presentment, Russ, 60 A.at 171,11 the purported distinction between requiring the government affirmatively to act and prohibiting the government from taking an action is no distinction at all.
In West Shore, we considered whether the General Assembly could use a concurrent resolution, without presentment, to reestablish the Pennsylvania Labor Relations Board (“PLRB“) after the agency was slated to be disbanded. We ruled that “[m]erely the passage of a resolution by both chambers . . . reestablish[ing] an agency set for termination . . . violates Article 3, Section 9 of our State Constitution.” West Shore, 626 A.2d at 1136. By way of further example, imagine that an executive branch agency promulgates a new regulation that requires all businesses to purchase a fire extinguisher.
H.R. 836 acts in the same manner as the resolutions in West Shore and the above hypothetical. Even if the Senators are correct that H.R. 836 does not require any affirmative act on behalf of the Governor, the same was true in West Shore. There, the concurrent resolution did not require the executive branch to act; it simply mandated that the executive branch not allow the PLRB to terminate. Prohibiting the termination of the PLRB had legal effect, just as prohibiting an agency from enforcing a regulation would have legal effect.
Related to the Senators’ argument, the Dissenting Opinion (“Dissent“) asserts that Section 7301(c)‘s language regarding a concurrent resolution “does not bear on the
As amici observe, H.R. 836 “would drastically alter the enforcement and suspension of certain state laws and regulations, economic activity across a wide variety of sectors, medical and healthcare practices, public health operations, National Guard deployment and other aspects of everyday life for millions of Pennsylvanians.”13 Enforcement of H.R. 836, which requires the Governor to end the state of disaster emergency, would have far-reaching legal consequences beyond the Governor simply signing and publishing a new proclamation. It would prohibit the Governor from taking legal actions, and that prohibition itself has legal effect. To distinguish between a resolution that requires the Governor to take affirmative action and a resolution that forbids him from enforcing the law would be to elevate form over substance and allow “the negative of the” Governor to be “evaded by acts under the form of resolutions,” Statement of James Madison (Aug. 15, 1787), supra. Article III, Section 9 protects against such a result. Thus, H.R. 836 does not fit into the third exception to presentment.
To support its proposed exception to the requirement of presentment, the Dissent offers two points. First, the Dissent does “not regard [Sessoms] as binding precedent in the present -- and very different -- context.” Id. at 5; cf. id. at 4-5 n.3 (calling Sessoms “incompletely reasoned” because it “failed to recognize the exception to presentment requirement, deriving from the Griest decision, for matters that do not concern the business of legislating“). While we evaluated a different statute in Sessoms, our opinion there was clear: “[E]xcept as it relates to the power of each House to determine its own rules of proceedings, under our Constitution the legislative power, even when exercised by concurrent resolution, must be subject to gubernatorial review.” Sessoms, 532 A.2d at 782. Sessoms repeatedly noted our adoption of the approach of the Supreme Court of the United States. See id. at 779-80 (“[O]nce [the legislature] makes its choice enacting legislation, its participation ends. [It] can thereafter control the execution of its enactment only indirectly—by passing new legislation.“) (quoting Bowsher v. Synar, 478 U.S. 714, 733-34 (1986)) (emphasis omitted); id. at 780 (relying upon the reasoning of the Chadha
Related to this first point, the Dissent cites only decisions from the New Jersey Supreme Court and Justice Powell‘s concurrence in Chadha. See Dissent at 4-6, 9. The New Jersey Supreme Court, of course, has free reign to interpret that state‘s Constitution, but New Jersey‘s approach, in Florio and Enorato v. New Jersey Building Authority, 448 A.2d 449 (N.J. 1982), not only does not bind this Court; it also contradicts our approach to the legislative veto prescribed by our Constitution‘s presentment clause (Article III,
In sum, “[t]here is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided” by characterizing the legislation as a delegation of emergency powers. Id. at 959. A legislative veto in the context of a statute delegating emergency powers might be a good idea. It might be a bad idea. But it is not a constitutional idea under our current Charter.
B. Section 7301(c) Requires Presentment
Our conclusion that a concurrent resolution seeking to force the Governor to end a state of disaster emergency has legal effect and does not fit into any of the three recognized exceptions to presentment bears upon our interpretation of Section 7301(c) itself. The concurrent resolution provision of Section 7301(c) provides: “The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency.”
The Senators, see Senators’ Reply Brief at 8-12, and their amicus16 aver that Section 7301(c) cannot be read to require presentment. Though providing little textual analysis, the Senators point to the words “at any time,” “[t]hereupon,” and “shall issue” to suggest that the General Assembly did not intend to require presentment for a concurrent resolution under the statute. See Senators’ Reply Brief at 8. According to amicus, “[t]he General Assembly purposely declined to include a veto mechanism in [S]ection 7301(c) and thereby made manifest its intent to require ministerial gubernatorial action whenever a concurrent resolution ends a state of disaster emergency.”17 We acknowledge that the Senators’ reading of Section 7301(c) is a reasonable one. In particular, the word “[t]hereupon” could imply that the Governor must issue an executive order as soon as the General Assembly passes the concurrent resolution, without the Governor having an opportunity to approve or veto the resolution first. See Thereupon, BLACK‘S LAW DICTIONARY (11th ed. 2019) (“Immediately; without delay; promptly.“).
However, the Senators’ interpretation of Section 7301(c) is not the only reasonable reading of the statute. Section 7301(c) does not state unequivocally that the Governor‘s declaration of a disaster emergency is terminated the moment that the General Assembly passes a concurrent resolution purporting to do so. If the General Assembly intended to give itself the ability to terminate a state of disaster emergency unilaterally, there would have been no need to involve the Governor in the equation at all. If this had been the intent of the General Assembly, the language of Section 7301(c) would have been considerably more straightforward and truncated, i.e., “the state of disaster emergency will be terminated by passage of a concurrent resolution so stating.” Instead, the General
The Concurring and Dissenting Opinion (“CDO“) disagrees. Specifically, the CDO suggests that inclusion of a role for the Governor is “easily explained: the legislature wields no executive power in this limited context and has no means to retract the chief executive‘s previously-issued proclamation, or to issue a new declaration or proclamation undoing the previous one.” CDO at 3. But that conclusion is beside the point. The General Assembly is well-aware that the power to declare or end a disaster emergency is not an exclusively “executive power.”
As we explained in Friends of Danny DeVito, “[t]he broad powers granted to the Governor in the Emergency [Services Management] Code are firmly grounded in the Commonwealth‘s police power.” Friends of Danny DeVito, 227 A.3d at 886. The Commonwealth‘s police power is not exercised by the Governor alone, but rather “is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare.” Commonwealth v. Barnes & Tucker Co., 371 A.2d 461, 465 (Pa. 1977). The General Assembly, not just the Governor, can exercise the police power. See Nat‘l Wood
If a statute or resolution is passed over the Governor‘s veto, the Governor still must abide by that law, even if the General Assembly does not specifically require that the Governor enforce that law. See
“Under the canon of constitutional avoidance, if a statute is susceptible of two reasonable constructions, one of which would raise constitutional difficulties and the other of which would not, we adopt the latter construction.” Commonwealth v. Herman, 161 A.3d 194, 212 (Pa. 2017). This canon of statutory interpretation is prescribed both by our General Assembly and by our precedent. The legislative branch has advised this Court that, “[i]n ascertaining the intention of the General Assembly in the enactment of a statute,” we are to presume that the legislature “does not intend to violate the Constitution . . . of this Commonwealth.”
Applying the canon of constitutional avoidance, Section 7301(c) must be read to require presentment to the Governor. As discussed above, any resolution seeking to end a declaration of disaster emergency has the effect of legislating, necessitating presentment. Thus, although the Senators’ interpretation of Section 7301(c) is reasonable, that interpretation would violate our Commonwealth‘s Constitution. Because there is another reasonable interpretation of Section 7301(c)—that the provision does require presentment—we must read the statute in that manner. Therefore, because H.R. 836 was not presented to the Governor and, in fact, affirmatively denied the Governor the
The Dissent contends that application of the canon of constitutional avoidance should depend upon whether “the chosen construction substantially weakens the Legislature‘s ability to act as a check on the actions of a co-equal branch.” Dissent at 8 n.5. There is no basis in our jurisprudence to authorize creation of a sliding scale of constitutional avoidance based upon whether the provision at issue involves one branch‘s ability to control the affairs of another branch. The General Assembly has prescribed for this Court one standard for deciding constitutional avoidance questions: a presumption “[t]hat the General Assembly does not intend to violate the Constitution . . . of this Commonwealth.”
Both the Governor and the Senators point to precedent from this Court where we have, and have not, applied the canon of constitutional avoidance in interpreting a statutory provision that did not explicitly require presentment of a concurrent resolution. For example, in Sessoms, we concluded that the General Assembly intended to require presentment in a statute providing that the General Assembly could reject sentencing guidelines adopted by the Pennsylvania Commission on Sentencing. Sessoms, 532 A.2d at 782; see also Governor‘s Application at 19. Conversely, in West Shore, we determined that we could not interpret a provision of the Sunset Act, Act of December 22, 1981, P.L. 508 No. 142, to require presentment. West Shore, 626 A.2d at 1135-36; see also Senators’ Reply Brief at 10-12. That we reached differing conclusions in these two cases
Indeed, the case for constitutional avoidance in this case is stronger than in Sessoms. The statute at issue in Sessoms provided that “[t]he General Assembly may by concurrent resolution reject in their entirety any initial or subsequent guidelines adopted by the [Pennsylvania Commission on Sentencing] within 90 days of their publication in the Pennsylvania Bulletin.” Sessoms, 532 A.2d at 776-77 (quoting the version of
In Sessoms, “we d[id] not find it fatal to” Section 2155(b) “that it d[id] not explicitly require presentment of a rejection resolution to the [G]overnor,” as we could “imply such a condition to avoid finding the statute unconstitutional on its face.” Id. at 782. Although Sessoms is helpful in terms of evaluating Section 7301(c), our language there expressed a truism: if a statute is ambiguous, a court should interpret that statute in such a manner
While the canon of constitutional avoidance leads us to the interpretation we adopt here, a reading of Section 7301(c) in its entirety further militates in favor of presentment. In the clearest language possible, the statute authorizes the Governor to declare that a disaster emergency has occurred or is imminent, to continue the state of disaster emergency until such time as the Governor finds that the threat or danger has passed, and, to the extent the threat has passed or an emergency no longer exists, to terminate the state of disaster emergency by executive order or proclamation.23 Thus, while Section 7301(c) provides that the General Assembly may terminate a state of disaster emergency at any time, the statute also provides that the state of disaster emergency ends only after the Governor so finds. By reading the presentment requirement into Section 7301(c), we afford meaning to all of the provisions of the statute. If the Governor does not agree with the General Assembly that the emergency has ended, the Governor can exercise a veto, a veto that, with any other legislation, can be overridden by a two-thirds vote of both Houses of the General Assembly.
The Senators observe that, in Friends of Danny DeVito, regarding the concurrent resolution provision of Section 7301(c), we stated: “As a counterbalance to the exercise of the broad powers granted to the Governor, the Emergency Code provides that the General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.” Friends of Danny DeVito, 227 A.3d at 886; see also id. at 896 (“We note that the Emergency Code temporarily limits the Executive Order to ninety days unless renewed and provides the General Assembly with the ability to terminate the order at any time.“). Nowhere in Friends of Danny DeVito did we state that the Emergency Services Management Code allows the General Assembly to terminate a state of disaster emergency by way of concurrent resolution without presentment. No party in Friends of Danny DeVito presented to this Court the questions of interpretation of the concurrent resolution provision or the constitutional demands of presentment. Nonetheless, that language accords with our decision today. Section 7301(c) does indeed contain a “counterbalance to the exercise of the broad powers granted to the Governor.” Id. at 886. Confronted now with the duty to interpret Section 7301(c) and
III. The Power to Suspend Laws
As an alternative argument, the Senators posit that the General Assembly could end the state of disaster emergency through a concurrent resolution without presentment under
A. Article I, Section 12 Does Not Give the Legislature the Power to Act Unilaterally
The history of
As states began enacting constitutions after our Nation declared independence, the Framers of those Constitutions, still wary of executive power, adopted provisions similar to that in the 1689 English Bill of Rights. See Steven G. Calabresi, Sarah E. Agudo & Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition?, 85 S. CAL. L. REV. 1451, 1534-35 (2012) (listing early state constitutions with similar clauses). For example, the Framers of early Virginia Constitutions “held [a] historic distrust [of concentrated executive power] based on the ‘arbitrary practice’ of English Kings before the Glorious Revolution of 1688,” and endorsed a provision preventing the executive from suspending laws unilaterally. Hewell v. McAuliffe, 788 S.E.2d 706, 721 (Va. 2016). The Kentucky Supreme Court, noting that the clause in the Kentucky Constitution “was modeled after a similar provision in the Pennsylvania Constitution,” stated that the clause “was originally designed to reflect the will of the framers to prevent suspension of duly-enacted laws by any entity other than the constitutionally-elected legislative body, a power the British government had ruthlessly exercised over the colonies.” Baker v. Fletcher, 204 S.W.3d 589, 592 (Ky. 2006). Thus, Article I, Section 12, like the clauses in other early state constitutions, traces its roots to the 1689 English Bill of Rights. See Nicolette v. Caruso, 315 F. Supp. 2d 710, 726 (W.D. Pa. 2003).
The 1689 English Bill of Rights indicates that the analogous provision was aimed at preventing English monarchs from suspending laws on their own initiative and was not intended to transfer to Parliament the power to act unilaterally. Indeed, the text of the 1689 provision confirms this reading. After promulgation of the 1689 English Bill of Rights, the monarch could not suspend laws “without the consent of Parliament.” 1 Wm. & Mary, ch. 2, § 1 (emphasis added). It appears that, rather than shifting the power to suspend laws from one branch to another, the purpose of the provision was to ensure a shared power between King or Queen and Parliament, a form of what we commonly refer to as checks and balances.25 Imputing this historical understanding to our own Constitution, Article I, Section 12 does not empower the General Assembly to act alone, but rather distributes the power to suspend laws between the legislative and executive branches.26
The placement of Article I, Section 12 in our Constitution‘s Declaration of Rights further indicates that the provision is a negative check on executive power rather than an affirmative grant for the legislature to act without the Governor. Since 1790, the Framers
A comparison of Article I, Section 12 with other provisions of our Constitution that are exempt from presentment further supports this reading of the suspension power. As noted above, Article III, Section 9 explicitly exempts resolutions pertaining to adjournment from presentment. And Article XI of our Constitution sets forth a comprehensive scheme for amending the Constitution. See Kremer, 606 A.2d at 436 (describing Article XI as a “complete and detailed process for the amendment of that document“); Griest, 46 A. at 506 (“It is a system entirely complete in itself, requiring no extraneous aid, either in
Relatedly, this Court has characterized the power of suspending laws as part of the process of lawmaking. For example, when a party claimed that an action taken by the executive branch violated Article I, Section 12 and Article II, Section 1, which vests legislative power in the General Assembly, we read the two clauses together, writing that those provisions “vest[] legislative power in the General Assembly and give[] it the power to amend, repeal, suspend or enact statutes.” SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495, 500 n.3 (2014); see also McCreary v. Topper, 10 Pa. 419, 422 (1849) (“That would be arrogating legislative power, and suspending law.“). The suspension of statutes, like the amendment, repeal, or enactment of statutes, is a legislative action. And legislative actions are subject to presentment. See
Finally, we would be remiss to “disregard the gloss which life has written upon” suspension clauses in other constitutions. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring). In Kentucky, for example, which traces its suspension clause to our Constitution, see Baker, 204 S.W.3d at 592, when the legislature has suspended laws, it has done so through statutes presented to the Governor for his or her approval. See, e.g., Commonwealth ex. rel. Beshear v. Bevin, 575 S.W.3d 673, 679-80 (Ky. 2019) (adjudicating a suspension clause case involving
The Senators call our attention to the suspension clause in the Louisiana Constitution. See Senators’ Brief at 39. Yet the corresponding clause in that Constitution is fundamentally different from our own. Louisiana‘s Constitution, which houses the suspension clause in the article related to the legislative branch, provides:
Only the legislature may suspend a law, and then only by the same vote and, except for gubernatorial veto and time limitations for introduction, according to the same procedures and formalities required for enactment of that law. After the effective date of this constitution, every resolution suspending a law shall fix the period of suspension, which shall not extend beyond the sixtieth day after final adjournment of the next regular session.
Based upon the original history of Article I, Section 12, the Framers’ decision to place that provision in our Declaration of Rights, a comparison between Article I, Section 12 and other provisions from which presentment is excluded, and the practice of other jurisdictions, we hold that Article I, Section 12 of the Pennsylvania Constitution does not affirmatively grant the General Assembly the power to suspend laws unilaterally. Rather, as an exercise in lawmaking, the suspension of laws must adhere to the requirement of presentment, an essential component of our Constitution‘s system of checks and balances.28 Even if H.R. 836 amounted to a suspension of law by the General Assembly, that does not save it from the constitutional presentment requirement.
B. The General Assembly Cannot Use Unconstitutional Means to Overturn a Governor‘s Decision to Suspend Laws After Delegating That Power to the Governor
Finally, the Senators allege a violation of the non-delegation doctrine. In their initial brief, the Senators aver that, because the Governor‘s Proclamation itself was a suspension of law, “the General Assembly not only retained for itself—as it must—the ultimate authority for determining when a suspension of laws is no longer appropriate, but also specified the vehicle through which it may be exercised: a simple majority concurrent resolution.” Senators’ Brief at 42. For purposes of discussion, we assume, without deciding, that the Proclamation amounted to a suspension of law under
In their self-styled “Reply Brief,” the Senators argue, for the first time, that the Emergency Management Services Code itself is unconstitutional under the non-delegation doctrine. See Senators’ Reply Brief at 2-7. “A claim is waived if it is raised for the first time in a reply brief.” Commonwealth v. Collins, 957 A.2d 237, 259 (Pa. 2008). However, assuming arguendo that we can address the broader non-delegation claim, it is unavailing.
The Senators’ initial argument is puzzling. They aver that the non-delegation doctrine only kicks in if the Governor is correct in believing that the Proclamation was “law.” Senators’ Brief at 3. The Senators confuse an order having the effect of law with one exercising legislative power. The non-delegation doctrine forbids entities other than the legislative branch from exercising the “legislative power,” as those entities do not have “the power to make law.” Protz, 161 A.3d at 833.
The Governor does not argue that the Proclamation is a law in and of itself, but rather that the Proclamation has “the force of law.” Governor‘s Application at 28; see also
The Senators also cite our decision in Protz for the two limitations underlying the non-delegation doctrine: “First, . . . the General Assembly must make the basic policy choices, and second, the legislation must include adequate standards which will guide and restrain the exercise of the delegated administrative functions.” Protz, 161 A.3d at 834 (internal quotation marks and citation mitted). The Emergency Services Management Code adheres to both standards.
The General Assembly, in enacting the statute, “ma[de] the basic policy choices.” Id. The General Assembly decided that the Governor should be able to exercise certain powers when he or she makes a “finding that a disaster has occurred or that the occurrence of the threat of a disaster is imminent.”
Additionally, the General Assembly has provided “adequate standards which will guide and restrain” the Governor‘s powers. Protz, 161 A.3d at 834. The General Assembly gave the Governor specific guidance about what he can, and cannot, do in responding to a disaster emergency. See
Returning to the Senators’ argument regarding the Governor‘s alleged suspension of law and the non-delegation doctrine, first, it is clear from the text of
In their distinct non-delegation argument with regard to the suspension of laws, the Senators contend that, when the Governor suspends laws pursuant to a delegation of authority, he “acts as the legislature‘s agent and, thus, is subject to any restrictions the General Assembly may see fit to put into place.” Senators’ Brief at 41. The same, however, could be said of the Governor‘s power to issue regulations, via an executive branch agency, when that power is delegated from the legislative branch. In such an instance, the Governor is acting as agent of the legislature, subject to the constraints in
The Senators may be frustrated that, the General Assembly previously having delegated power to the Governor, the rescission of that power requires presentment, perhaps necessitating a two-thirds majority to override a veto. But the potential for such frustration inheres whenever the legislative branch delegates power to the executive branch in any context. The General Assembly itself decided to delegate power to the Governor under Section 7301(c). Current members of the General Assembly may regret that decision, but they cannot use an unconstitutional means to give that regret legal effect. The General Assembly must adhere to the constitutional requirement of presentment even when attempting to overturn the Governor‘s delegated putative authority to suspend laws.
The protection against unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail[s], the people in their sovereign capacity can correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power. . . . If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the Constitution.
Russ, 60 A. at 173 (quoting COOLEY ON CONSTITUTIONAL LIMITATIONS, c. 7, §§ 4, 5 (6th ed. 1890)). Members of the General Assembly and residents of our Commonwealth have differing opinions on how to respond to the COVID-19 pandemic. Some may believe that the Governor‘s exercise of power under Section 7301(c) is necessary and proper. Others may feel that Section 7301(c), and the Governor‘s subsequent Proclamation, is “unwise and oppressive legislation.” Russ, 60 A. at 173. As members of the judicial branch, we do not, and indeed cannot, take positions on such matters of policy, because, aside from the domain of common law, “setting public policy is properly done in the General Assembly and not in this Court.” Senators’ Reply Brief at 30. We “are not at liberty to declare statutes void of their apparent injustice or impolicy.” Russ, 60 A. at 173. Our function is far more restrained. In this instance, we determine only whether the actions of our sister branches of government have complied with our Commonwealth‘s Constitution and statutory law.
The General Assembly‘s attempt, through H.R. 836, to overturn the Governor‘s Proclamation of Disaster Emergency without presentment, violated Section 7301(c) of the Emergency Services Management Code. As an act with legislative effect, H.R. 836, like
Justices Baer, Todd and Donohue join the opinion.
Justice Dougherty files a concurring and dissenting opinion.
Chief Justice Saylor files a dissenting opinion in which Justice Mundy joins.
Notes
After granting King‘s Bench jurisdiction, a number of motions were filed. We take this opportunity to dispose of those motions.
Every order, resolution or vote, to which the concurrence of both houses is necessary, except on the question of adjournment and except joint resolutions proposing or ratifying constitutional amendments, is presented to the Governor and before it takes effect is approved by him or, being disapproved, may be repassed by two-thirds of both houses according to the rules and limitations prescribed in case of a bill.
(b) Rejection by General Assembly.--Subject to gubernatorial review pursuant to section 9 of Article III of the Constitution of Pennsylvania, the General Assembly may by concurrent resolution reject in their entirety any guidelines, risk assessment instrument or recommitment ranges adopted by the commission within 90 days of their publication in the Pennsylvania Bulletin pursuant to subsection (a)(2).
A disaster emergency shall be declared by executive order or proclamation of the Governor upon finding that a disaster has occurred or that the occurrence or the threat of a disaster is imminent. The state of disaster emergency shall continue until the Governor finds that the threat or danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist and terminates the state of disaster emergency by executive order or proclamation, but no state of disaster emergency may continue for longer than 90 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency.