Pennsylvania constitutional amendments seen as unlikely to face strong legal challenge

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Pennsylvania residents became the first in the nation on Tuesday to vote in favor of limiting the governor’s emergency powers after an intense year of COVID-19 restrictions.

Now, all eyes turn toward the possibility of legal challenges that could prevent the two approved constitutional amendments from becoming reality – though it appears Gov. Tom Wolf, himself, isn’t planning any.

“We’ve never had something like this [pandemic],” he said Wednesday during a news conference about charter school reform. “It was a great experiment and a great time to see how the system we had worked, and a lot of people had a sense we could do it better.

“It’s up to us to make this work,” he continued. “We have some new rules, let’s make this work. That was the message from last night.”

The two amendments require the governor to seek legislative approval for disaster declarations extending beyond 21 days and specify that the General Assembly can terminate a declaration upon passage of a concurrent resolution with a simple majority. The latter stems from a failed legal challenge legislative Republicans brought last year when Wolf refused to sign an approved resolution ending the COVID-19 disaster declaration.

Just two weeks after the Pennsylvania Supreme Court upheld that only governors could terminate the state’s 90-day disaster declarations, lawmakers proposed the two constitutional amendments voters approved 54-46% in Tuesday’s primary election.

House Speaker Bryan Cutler, R-Lancaster, and Majority Leader Kerry Benninghoff, R-Bellefonte, in a joint statement released Wednesday morning warned against any potential legal challenges to the amendments.

“To use the courts to continue to grasp on to power is to ignore a fresh mandate from those you represent and will confirm the worst fears of a public that wants to change course in the management of emergency periods,” the leaders said.

A House GOP spokesperson confirmed that no specific threat has yet materialized.

Kevin Levy, an attorney with Saul Ewing Arnstein & Lehr in Philadelphia, told The Center Square on Wednesday he isn’t sure what a legal challenge against the amendments “would even look like.”

“You can challenge anything for any reason whatsoever,” he said. “Frankly, I’m not sure that there’s a ‘there’ there.”

Levy pointed to the 3-2 Commonwealth Court ruling issued in January that tossed out a voter-approved constitutional amendment known as Marsy’s Law because it “tried to do too many things.”

The amendment expanded victims’ rights with provisions that required case notifications and the ability to participate in different court proceedings. Critics argued the ballot question that appeared before voters in the November 2019 election bundled too many changes together, violating the constitution’s single subject rule.

“That’s not the case with these amendments,” Levy said. “They are really focused on what exactly each [amendment] does.”

With the state’s fourth COVID-19 disaster declaration set to expire Thursday, it's unclear if Wolf will sign another. The Center Square reached out to the administration for comment but did not receive an immediate response.

Levy said that although the amendments limit the governor’s emergency powers, acting Secretary of Health Alison Beam can use her limited authority under the Disease Control and Prevention Law to uphold masking mandates, capacity restrictions and other mitigation rules, the remainder of which are set to expire May 31.

“It remains to be seen if she will fill in the additional gaps now that Governor Wolf can no longer do that,” he said. “The Disease Control and Prevention Law [is] not a catch all, but for Covid, it would be very relevant.”





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