Governors do not have unlimited power to restrict the liberty of the citizens of their states — even in a pandemic.
That’s the essence of a federal court ruling that struck down as unconstitutional Pennsylvania Gov. Tom Wolf’s pandemic-related orders.
U.S. District Judge William Stickman IV this week ruled that Pennsylvania’s limits on gatherings violate the First Amendment and that statewide stay-at-home and business-closing orders violate the 14th Amendment.
It is generally accepted that state governments, unlike the federal government, possess broad power to protect the health and safety of their citizens. But the state “police power”, as it is called, is not unlimited, and state efforts to address an emergency may not unduly burden constitutional rights.
For example, earlier this year, U.S. District Judge Douglas P. Woodlock ruled that Massachusetts Governor Charlie Baker’s decision to close gun shops placed an undue burden on the right to bear arms in violation of the Second Amendment of the U.S. Constitution.
On Monday, Judge Stickman struck down a much larger group of Pennsylvania restrictions on different constitutional grounds.
Specifically, Judge Stickman held that the state’s prohibition of public or private gatherings violates the First Amendment right to assemble because it is not “narrowly tailored to serve a significant government interest.”
Stickman noted not only that the gathering restrictions contain no logical end point but that they are followed inconsistently. He wrote:
The plain language of the orders makes no exception for protests . . . . However, the record unequivocally shows the Defendants have permitted protests, and that the Governor participated in a protest which exceeded the limitations set forth in his order and did not comply with other restrictions mandating social distancing and mask wearing.
Judge Stickman also ruled that stay-at-home orders and the closure of all “non-life-sustaining businesses” violate the equal protection clause and the due process clause of the 14th Amendment.
The Pennsylvania case is just one of many lawsuits nationwide brought by business owners and private citizens challenging state pandemic restrictions.
Cases brought in federal court typically argue that state restrictions infringe upon constitutionally protected rights, such as the right to worship, the right to assemble, or the right to bear arms.
By contrast, state court challenges tend to challenge the governor’s power to act without specific legislative authorization. Last week, for example, a coalition of business owners argued before the Supreme Judicial Court of Massachusetts that Governor Baker lacked the legal authority to shutter non-essential businesses and organizations. The Massachusetts business owners claim that, while state law empowers the governor to enact emergency measures in the case of foreign invasions, armed insurrections, and civil unrest associated with natural disasters, it does not grant the governor power to issue emergency decrees related to public health issues.
As Boston Globe columnist Jeff Jacoby explains,
If Baker issued orders by relying on a statute that doesn’t actually grant him that power, those orders were, in legalese, “ultra vires” — beyond the scope of his authority. Until and unless lawmakers empower Baker to issue emergency orders to address a pandemic, the plaintiffs argue, he may not do so. So far, lawmakers haven’t acted.
The Wisconsin Supreme Court in May adopted similar reasoning in striking down that state’s stay-at-home order. But one month earlier, the Pennsylvania Supreme Court reached the opposite result, reasoning that Governor Wolf’s pandemic orders were authorized by legislation granting him power to address natural disasters.
Unlike these state cases, the federal case decided on Monday does not address the question of whether the Pennsylvania governor had the authority to issue pandemic-related restrictions. It addresses only whether the exercise of such authority violates the U.S. Constitution.
Governor Tom Wolf has said he will appeal the ruling.
Whether Judge Stickman is correct with respect to the particular constitutional provisions in question, he is certainly right that “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.”