Is Pennsylvania’s Stay at Home Order Legal?

Police powers – An outline created for a friend

Related federal law

• This is considered a police power and is reserved to the states via the 10^th amendment
  • At the heart of this issue as police powers are how these stay at home orders are passed
  • It’s regulating for the health, order, and general welfare of the people
  • This is how states are different with, say, cigarette taxes from one state to another, or how school districts get their money. Speeding tickets, all that stuff, that’s all covered under police powers
• The 14^th amendment incorporates the bill of rights into mandatory rights for national citizens (so everyone is covered by the bill of rights even if states don’t want to)
• The federal government absolutely cannot compel states to pass legislation or abridge the rights of the states except for the ways put forth in the constitution
  • One way this is commonly avoided is the Commerce Clause, which courts have broadly interpreted to mean just about anything that could enter interstate commerce. Though obviously interstate commerce is affected by all of this, police powers have been so thoroughly and completely granted to the states that it would be pretty much unthinkable to do so now
  • A second way to avoid this is to bribe the states. Alcohol laws at set at 21 and speed limits are set according to the federal government because the feds won’t give the states infrastructure funding unless they pass those laws.
    • Limitation is that it can’t be “an offer you can’t refuse.”
  • So the federal government can offer incentives to states to open or close or whatever but ultimately the choice is in the states

 

State Law

Constitutional law

• State constitutions are the law of the land in areas the federal government can’t or hasn’t tried to encroach upon. This includes the police power
• Constitutional law will trump legislation, same as at the federal level
• Pennsylvania has a somewhat unique system of townships that makes this analysis a bit more difficult for me but at least you aren’t Louisiana.

 

Statutory Law

• Law that isn’t derived from the constitution. The laws that congress or other legislative bodies pass. Those statutes are put together in the Pennsylvania Code and is the controlling law barring a conflict with the state constitution or federal law (since we’re dealing with police powers I’m going to omit any discussion of federal law from this point on)
• The SAH orders are based on Title 35, Chapter 73 of the PA Consolidated Statutes
  • The authority of the governor under this chapter:
    • Responsible for meeting dangers from disasters
    • “Governor may issue, amend and rescind executive orders, proclamations and regulations which shall have the force and effect of law.”
      • The governor can declare states of emergency whenever, but they can only last for 90 days unless they’re renewed. If the legislature disagrees that a state of emergency should be declared the General Assembly can terminate the state of emergency at any time.
      • The executive order declaring the state of emergency gets the disaster response going and triggers the local governments to start their relevant planned disaster responses
      • The governor gets to control state military forces (e.g., the National Guard) but should try to limit its use as much as possible
      • Various other powers are given that allow broad discretion to close things, restrict things (including movement), etc.
      • Can also “Suspend the provisions of any regulatory statute prescribing the procedures for conduct of Commonwealth business, or the orders, rules or regulations of any Commonwealth agency, if strict compliance with the provisions of any statute, order, rule or regulation would in any way prevent, hinder or delay necessary action in coping with the emergency.” Title 35, Chapter 73, 7301(f)(1)
    • Expanding analysis of Title 35, Chapter 73, 7301(f)(1)
      • There are other possible issues at hand here but this is the crux of what the protests have been about
      • This statute on its face seems fine and in keeping with the police powers of the state, the need for a central response, and a check on power via the legislative body
      • Lawsuits challenging this authority have been dismissed. The law itself is not at issue here in any rational way that I can discern. It’s the implementation that can be challenged
    • Objections to SAH order
      • Arbitrary, capricious, and vague
        • This isn’t a general criticism but a legal one.
          • Arbitrary laws are not valid. If a law was passed that banned pizza that law would be invalid because it was arbitrary and passed with no real reason.
          • Capricious laws are not valid. If a law is passed just because the legislature felt like passing it and had no real reason to, that’s invalid. Pretty much the same as above. Honestly I’m not sure there’s a difference except that “arbitrary, capricious, and vague” standard way of referring to laws that the person thinks is invalid. The phrase is seen a lot in court decisions as well.
          • Vague laws are not valid. If a law banned “large pizzas” that would be invalid. Would that mean pizzas labeled large? Pizzas over a certain size? Could you have pizzas that are huge so they are bigger than large pizzas? It’s so vague it’s meaningless and invalid.
        • There is a general presumption that a law is valid and it is pretty hard to win on that theory because of an assumption that the legislature is acting properly. If it was found that the combination of sauce, dough, and cheese taken together causes stomach tumors a law banning pizzas might make sense. Maybe it’s not the most effective way to do it, maybe it’s not the smartest, but unless you can show that the law was really written poorly it’s going to hold.
        • This is pretty much the only way to attack a statute itself, however.
      • Is it arbitrary/capricious?
        • There is a real purpose to the SAH order and the statute that allows it. It’s not just for the hell of it but for a solid reason. Just because you don’t agree with a law doesn’t make it arbitrary, either. It’s an objective standard, to the extent that anyone can be objective about anything. Is the law meant to deal with something that the legislature has a rational reason to address? If yes, it’s not arbitrary or capricious
        • It could, however, be arbitrary and capricious if it doesn’t address the issue in a way that makes sense.
      • Is it vague?
        • It says you have to stay at home except
          • To access, support or provide
            • life sustaining business
              • includes group or family child care providers in a residence
              • child care services with a waiver (and says where to get the waiver)
              • and part-day school age programs operating under an exemption from the March 19 business closure orders
            • emergency
            • government services
          • To take care of themselves, another person, or a pet
          • To go outside as long as you’re not gathering together and are using the CDC’s social distancing practices
          • It also incorporates a list of life sustaining businesses and exempted businesses
        • The list is very detailed. I would not say it is vague. From looking it over it also does not appear capricious or arbitrary, especially when you consider the deference given, the assumption that it’s valid unless it’s shown that it’s not
          • The list has been modified multiple times, but seemingly only to relax it and let more businesses open. If it was opening and closing businesses with each revision that would be pretty vague but if it’s just opening things up (and even if there are small number of open things that get closed) it’s decreasing it’s imposition instead of increasing it which undermines an attack on it
        • On its face it seems to be valid under PA law.
        • It also has checks by both branches.
          • The legislature hasn’t overruled it even though it easily could
          • The state Supreme Court said it was fine
            • The appeal to SCOTUS seems, frankly, ridiculous because as addressed above this is a police powers issue.
              • SCOTUS can only deal with questions of federal law. The issue is with state police powers. The argument can’t go from being pissed at state police powers and then morph into a different case to get to SCOTUS. The case is relying on an equal protection clause theory which boils down to that similarly situated people should be treated the same. This is often the line that’s used to get federal jurisdiction over cases that otherwise would be clearly a state issue. There’s just no appellate jurisdiction there, the lawyers must know this, and this can’t be anything other than showmanship or political circus

 

This was my analysis based on the news articles I read and what angry people were saying. I think the authority has been shown valid. Any challenge seems, to me, to have to drive at the execution of that order. So we get to the actual case at hand.

• PA Supreme Court addressed the arguments in the actual suit filed
  • Unanimous decision of the court, except for one dissent that didn’t think the court had the jurisdiction to hear the case but otherwise agreed with the opinion
  • That the order has violates equal protection because of a political campaign
    • Apparently Danny DeVito is running for office and his campaign office has been shut down. His opponent, a member of the State House of Representatives, has been able to keep her office so that’s not fair and isn’t treating them equally
    • The court said that to act like a campaign office is the same as a government office is pretty disingenuous
  • That keeping businesses closed is a taking
    • The theory there is kind of like eminent domain in a way; it’s the government taking your stuff and just like you have to be paid market rate for property taken inappropriately the complaint here is that their businesses are losing money over the closures, and since the government ordered the closures, that this is taking their stuff without compensation.
    • In order for the takings prohibition to apply the government action must make the property unviable (like if you bought a wilderness parcel for logging, and the government banned logging there, and there’s no other use for the property, that’s a taking)
      • And one of the places was even doing take-out food at a restaurant so this argument certainly doesn’t apply to them
    • Pennsylvania law has established that police power actions are not the same as eminent domain and so do not constitute a taking
    • The closures are not taking all economic value, they still have their property and once this is over they’ll retain ownership so there is no legal taking in a temporary situation
  • That the order has no statutory authority
    • We’ve already covered that above
  • That the pandemic is not a natural disaster as defined by the emergency code and so they’re not in a disaster area so closing businesses violates statutory law
    • That’s really dumb.
    • All of PA is a disaster area with this going on
  • That the public’s interests are not served by the closures, that closing them before they actually find coronavirus there is too early, and that closures were unduly burdensome
    • “Under the exigencies created by the spread of the coronavirus and the critical interests of the public, generally, [they] cannot prevail.”
    • Maybe people could argue about whether this was the best way or perfect way or insufficient way to do this, the power here rests in the executive and the order isn’t ridiculous or anything so it stands (that presumption that a law/order is valid until proven otherwise)
  • That the executive order violates the separation of powers
    • So if one branch is doing something that is in the territory of another branch, that is unconstitutional. No executives legislating via executive order, for example, because that’s the legislature’s job and the powers need to be separate
    • Really invalid argument because the code explicitly says that this is how the governor should declare emergencies
  • That procedural due process was violated by the exemption process being so slow and unreliable
    • Procedural due process deals with getting a chance to tell your side. At its most extreme, a lack of it would be taking random people and executing them. As it’s usually encounter, the issue is that you’re getting screwed by the government and not given a proper chance to deal with it
    • Court found that the waiver program addressed this, and that while it would be wonderful to address everything beforehand and give everyone lots of notice there wasn’t time for that here, justifiably, and that the due process, consequently, must happen after
      • Did note that the governor’s response that no due process is needed in an emergency is very incorrect
    • That the order violates the 1^st amendment right to freedom of assembly
      • Speech can be restricted if it serves a compelling government issue and is content-neutral
        • It’s ok to limit gatherings in the public park to certain times and days if there are local concerns and such, but they have to limit it for everyone or no one
        • Assembly is not being targeted as such. There’s no attempt to keep people from talking, sharing ideas, etc., just from physically being there. The physical assembly is not possible due to a compelling government interest for which there is no narrower solution, and it’s content neutral
      • PA Realtors filed an amicus curiae to the main suit (amicus curiae, meaning friend of the court, is when third parties not involved in the case itself want to give the court other things to consider and think about, commonly when someone will be affected by the outcome of the suit and want those implications known). The tone of this brief seems like it’s meant for soundbytes and is never something I would submit to a court.
        • Argues that the list is arbitrary.
          • We have concluded that it is not.
          • Argument that it’s arbitrary because it’s been changed several times but leaves real estate out of it consistently (that’s not really arbitrary)
          • Argument that the order does not conform to the federal Cybersecurity & Infrastructure Security Agency (hereinafter CISA) advisory, a list that has one paragraph simply stating “Accordingly, this list is advisory in nature. It is not, nor should it be considered to be, a federal directive or standard in and of itself” (em. In original)
            • There’s no obligation for the state government to adopt federal regulations and the advisory itself stresses that. Things like this are things that are considered when litigating an issue but are not binding
            • Says it contradicts this FAQ that was published on 4/20/20, but I can’t find anything saying that, and resting your legal case on a FAQ about an advisory that exclaims it’s just guidance is pretty shaky

So the people against the closures appealed it to SCOTUS, and SCOTUS asked the PA governor for his side of the issue. It’s not a grant of certiorari, which would say that SCOTUS hear the case, but Alito wanted to hear more.  Alito handles the appellate stuff from this jurisdiction so he addressed. The Governor’s arguments were more or less:

• This is not how the process works
  • Alito said that the people against the closures are going about it without a proper understanding of process
  • “Applicants thus request an injunction from this Court, a rarely granted form of relief that requires them to establish that the legal rights at issue are indisputably clear. Applicants not only fail to satisfy this demanding standard, but they seem unaware that they bear any burden whatsoever”
• This is not how appellate jurisdiction works
  • They’re asking SCOTUS to review the Pennsylvania Supreme Court’s interpretation of the Pennsylvania Constitution. That’s a state issue that was wholly decided on state laws so they don’t even have the authority to hear the case.
• Shuts down a bunch of the arguments made that the state Supreme Court also shut down

SCOTUS decided not to hear it. So to answer your question, yes, I think that the order is constitutional.