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Pennsylvania Covid Restrictions Unconstitutional, Judge Says

Sept. 15, 2020, 12:09 AM

Pennsylvania Gov. Tom Wolf and his health secretary overstepped when they issued stay-at-home orders and restrictions on gatherings and forced business to close in response to the coronavirus pandemic, a federal judge said Monday.

Limits on gathering violate the First Amendment right of assembly, and orders closing “non-life-sustaining” businesses and directing residents to stay home violate the Fourteenth Amendment’s due process clause, Judge William S. Stickman IV of the U.S. District Court for the Western District of Pennsylvania ruled.

“In an emergency, even a vigorous public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions—while expedient in the face of an emergency situation—may persist long after immediate danger has passed,” the Stickman’s opinion said.

The coronavirus pandemic has killed more than 194,000 Americans, according to Bloomberg’s coronavirus tracker. Some 7,855 Pennsylvania residents had died of Covid-19 as of Monday, and the state has about 150,000 cases, the tracker shows. Data from the Centers for Disease Control and Prevention show that more than 35,500 new cases have been reported nationwide since Sunday.

Wolf, a Democrat, and Dr. Rachel Levine, secretary of the Pennsylvania Department of Health, argued that the orders deserve “extraordinary deference” due to their emergency nature, based on a standard laid out in the U.S. Supreme Court’s 1905 decision in Jacobsen v. Massachusetts.

Stickman cited with approval Justice Samuel Alito’s dissent in Calvary Chapel Dayton Valley v. Sisolak, which was released July 24. The Supreme Court’s denial of emergency relief “casts doubt” on whether the 115-year-old precedent “can, consistent with modern jurisprudence, be applied to establish a diminished, overly deferential, level of constitutional review of emergency health measures,” Stickman said.

Because Wolf and Levine “are statutorily permitted to act with little, if any, meaningful input from the legislature,” applying an “overly deferential standard would remove the only meaningful check on the exercise of power,” the opinion said.

One challenged order limits certain events and gatherings to no more than 25 people if indoors and 250 outdoors. The gathering limits fail intermediate scrutiny because they weren’t “narrowly tailored” to manage the pandemic’s effects, Stickman said.

The stay-at-home orders—which are currently suspended—fail under both strict and intermediate scrutiny, the opinion said. “Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.”

The business closure order, also suspended, is similarly “unprecedented” and runs afoul of “established Due Process principles,” Stickman said. The closures also violate the equal protection clause because they lack a rational basis in choosing which business could remain open, the opinion said. To the extent that Wolf and Levine “were picking winners and losers, they had an obligation to do so based on objective definitions and measurable criteria.”

President Donald Trump appointed Stickman to the federal bench in 2019.

Dillon McCandless King Coulter & Graham LLP represented the plaintiffs. The Pennsylvania Office of Attorney General represented Wolf and Levine.

The case is Cty. of Butler v. Wolf, 2020 BL 349482, W.D. Pa., No. 20-cv-00677, 9/14/20.

To contact the reporter on this story: Jennifer Bennett in Washington at jbennett@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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