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Federal judge rules PA lockdown ordered by Gov. Wolf unconstitutional

Gov. Wolf (Governor Tom Wolf/Released)

A federal judge in Pittsburgh ruled Monday that the non-life-sustaining business closures, restrictions on outdoor gatherings and stay-at-home orders undertaken by Gov. Tom Wolf and Secretary of Health Rachel Levine to mitigate COVID-19 were unconstitutional.

Liberties guaranteed by the U.S. Constitution cannot be subordinated even during times of an emergency, United States District Judge William S. Stickman IV wrote in his opinion, and the Constitution cannot accept the concept of a “new normal. “The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort, ” Judge Stickman wrote.

“But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment.

“Rather, Judge Stickman wrote, “the Constitution sets certain lines that may not be crossed, even in an emergency,” and actions taken by Mr. Wolf and Dr. Levine “crossed those lines” and are unconstitutional. Specifically, their outdoor gathering limits violated the First Amendment’s right of assembly, their stay-at-home orders and components of the business closure orders violated due process of the 14th Amendment and their business closure components violated the equal protection clause of the 14th Amendment, the court ruled.

Butler, Fayette, Greene and Washington counties — representing business and political entities who were impacted by the state’s restrictions — had filed the case against Mr. Wolf and Dr. Levine in May, alleging, among other things, that the state’s business closure orders were “arbitrary, capricious and interfered with the concept of ‘ordered liberty’ as protected by the Fourteenth Amendment.”

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Mr. Wolf’s office and the office of Pennsylvania Attorney General Josh Shapiro — who represented the governor and Dr. Levine — could not be immediately reached for comment.

Though the court acknowledged Mr. Wolf and Dr. Levine “undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus,” Judge Stickman wrote that “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge.”

Once relinquished, Constitutional liberties, the judge wrote, are hard to recoup and restrictions, while expedient during emergency, may persist long after danger has passed. And the threat to constitutional liberties is still ongoing, the judge noted, as though they’ve been suspended, the restrictions remain in place and can be reinstated when Mr. Wolf and Dr. Levine see fit.

“The language of the [business closure and stay-at-home provisions of the orders] themselves, as well as testimony adduced at trial, show that these provisions are merely suspended, not rescinded, and can be re-imposed at [Mr. Wolf and Dr. Levine’s] will, ” the judge wrote. Mr. Wolf was “vested…with extraordinary authority to take expansion action by executive order” when he first signed the disaster emergency declaration back in March, the opinion noted.

Mr. Wolf had asserted that all orders were aimed to “protect the public” and “prevent the spread of the disease,” and the executive deputy secretary for the state health department insisted the intent of closures “was to reduce the amount of interaction between individuals.” The case revealed details on the process behind the state’s restrictions, notably about the group that was formed in the governor’s office to work on pandemic issues and business closures. None of the meetings were public and no meeting minutes were kept, the opinion said, and the policy team that decided between what businesses were life-sustaining and which weren’t consisted solely of employees from Mr. Wolf’ policy and planning office — no members of which had a medical or infection control background.

The court decided that it’d apply “regular” constitutional scrutiny to the issues in the case because of the “ongoing and open-ended nature of the restrictions and the need for an independent judiciary to serve as a check on the exercise of emergency government power,” Judge Stickman wrote. Restrictions in Pennsylvania that were once intended to be temporary and to “flatten the curve” of COVID-19’s spread “have become open-ended and ongoing restrictions aimed at a very different end — stopping the spread of an infectious disease and preventing new cases from arising — which requires ongoing and open-ended efforts,” he added.

Courts are typically willing to give “temporary deference to temporary measures” if they’re geared toward alleviating a temporary crisis, Judge Stickman said, but the duration of this pandemic has already exceeded other emergencies and continues to proceed, without any state plan to lift restrictions.\n“It bears repeating: after six months, there is no plan to return to a situation where there are no restrictions imposed upon the people of the Commonwealth,” Judge Stickman wrote. And since Mr. Wolf and Dr. Levine are “statutorily permitted to act with little, if any, meaningful input from the legislature,” a deferential judiciary would “remove the only meaningful check on the exercise of power,” Judge Stickman wrote.

Republican leaders pounced on the ruling as vindication for the legislative and rhetorical efforts they’ve undertaken in recent months to hit back against the Wolf administration’s restrictions. House Speaker Bryan Cutler, R-Lancaster, and Majority Leader Kerry Benninghoff, R-Centre Mifflin, said in a joint statement that the opinion “offers some form of hope that a return to normalcy might be on the horizon” for small business owners who have lost their jobs and Pennsylvanians who are unemployed.

“Judge Stickman’s opinion confirms what Pennsylvania Republicans have been saying all along: The Wolf administration’s use of emergency authority is unconstitutionally overbroad,” the pair of leaders wrote. Mr. Cutler and Mr. Benninghoff said they hope Mr. Wolf will now work with the Legislature to “develop a plan that keeps people safe, does not unconstitutionally penalize Pennsylvanians, and takes into account our geographical differences.”

Jake Corman, majority leader of the state Senate, said the ruling validates what Republicans have been saying all along: that Mr. Wolf’s “arbitrary and open-ended decisions violate the Constitution.”

“We remain open and willing to work with Governor Wolf on a real plan to that puts Pennsylvania first,” said Mr. Corman, R-Centre. “It is far past time for him to abandon his go-it-alone approach and come to the table to work with the General Assembly on real solutions.”

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© 2020 the Pittsburgh Post-Gazette