Wolf., T. v. Scarnati, J. ( 2020 )

J-62-2020
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
THE HONORABLE TOM WOLF, : No. 104 MM 2020
GOVERNOR OF THE COMMONWEALTH :
OF PENNSYLVANIA, : SUBMITTED: July 1, 2020
:
Petitioner :
:
:
v. :
:
:
SENATOR JOSEPH B. SCARNATI, III, :
SENATOR JAKE CORMAN, AND SENATE :
REPUBLICAN CAUCUS, :
:
Respondents :
OPINION
JUSTICE WECHT DECIDED: July 1, 2020
Our government’s response to the challenges presented by the COVID-19
pandemic has engendered passionate arguments that span the political spectrum.
Pennsylvanians have watched with great interest as the political branches of our
Commonwealth’s government, represented by the Governor and the General Assembly,
have debated how best to respond to this novel coronavirus. In light of the intense public
interest in this issue, and because “[s]unlight is said to be the best of disinfectants,”1 we
find it necessary to make clear what this Court is, and is not, deciding in this case. We
express no opinion as to whether the Governor’s response to the COVID-19 pandemic
1 LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY AND HOW THE BANKERS USE IT 92
(Frederick A. Stokes Co. ed. 1914).
constitutes wise or sound policy. Similarly, we do not opine as to whether the General
Assembly, in seeking to limit or terminate the Governor’s exercise of emergency authority,
presents a superior approach for advancing the welfare of our Commonwealth’s
residents. Instead, we decide here only a narrow legal question: whether the
Pennsylvania Constitution and the Emergency Services Management Code permit the
General Assembly to terminate the Governor’s Proclamation of Disaster Emergency by
passing a concurrent resolution, without presenting that resolution to the Governor for his
approval or veto.
I. The Governor’s Proclamation of Disaster Emergency
On March 6, 2020, in response to the COVID-19 pandemic, Governor Tom Wolf
issued a Proclamation of Disaster Emergency (“Proclamation”)2 pursuant to 35 Pa.C.S.
§ 7301(c), a provision of the Emergency Management Services Code, id. §§ 7101, et
seq.3 Section 7301(c) states, in full:
(c) Declaration of disaster emergency.--A disaster emergency shall be
declared by executive order or proclamation of the Governor upon finding
that a disaster has occurred or that the occurrence or the threat of a disaster
is imminent. The state of disaster emergency shall continue until the
Governor finds that the threat or danger has passed or the disaster has
been dealt with to the extent that emergency conditions no longer exist and
terminates the state of disaster emergency by executive order or
proclamation, but no state of disaster emergency may continue for longer
than 90 days unless renewed by the Governor. The General Assembly by
concurrent resolution may terminate a state of disaster emergency at any
time. Thereupon, the Governor shall issue an executive order or
proclamation ending the state of disaster emergency. All executive orders
or proclamations issued under this subsection shall indicate the nature of
the disaster, the area or areas threatened and the conditions which have
2 Governor Tom Wolf, Proclamation of Disaster Emergency, COMMONWEALTH OF
PENNSYLVANIA, OFFICE OF THE GOVERNOR (Mar. 6, 2020),
https://www.governor.pa.gov/wp-content/uploads/2020/03/20200306-COVID19-Digital-
Proclamation.pdf.
3 See Act of Nov. 26, 1978, P.L. 1332, No. 323.
[J-62-2020] - 2
brought the disaster about or which make possible termination of the state
of disaster emergency. An executive order or proclamation shall be
disseminated promptly by means calculated to bring its contents to the
attention of the general public and, unless the circumstances attendant
upon the disaster prevent or impede, shall be promptly filed with the
Pennsylvania Emergency Management Agency and the Legislative
Reference Bureau for publication under Part II of Title 45 (relating to
publication and effectiveness of Commonwealth documents).
35 Pa.C.S. § 7301(c) (emphasis added). The Governor’s Proclamation activated many
emergency resources. To give just a few examples, it: transferred funds to the
Pennsylvania Emergency Management Agency; suspended provisions of regulatory
statutes relating to the operation of businesses, health, education, and transportation;
and mobilized the Pennsylvania National Guard.
On March 19, 2020, consistent with his earlier declaration of a disaster emergency,
the Governor issued an order closing businesses that were not considered life-
sustaining.4 Four Pennsylvania businesses and one individual challenged the Governor’s
Order, alleging that it violated the Emergency Management Services Code and various
constitutional provisions. On April 13, 2020, in an exercise of our King’s Bench
jurisdiction, see 42 Pa.C.S. § 502, we ruled that the Governor’s order complied with both
the statute and our Constitutions. Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa.
2020).
On June 3, 2020, the Governor renewed the Disaster Emergency Proclamation for
an additional ninety days.5 On June 9, 2020, the Pennsylvania Senate and the
4 Governor Tom Wolf, Order of the Governor of the Commonwealth of Pennsylvania
Regarding the Closure of All Businesses That Are Not Life Sustaining, COMMONWEALTH
OF PENNSYLVANIA, OFFICE OF THE GOVERNOR (Mar. 19, 2020),
https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-
business-closure-order.pdf.
5 Governor Tom Wolf, Amendment to the Proclamation of Disaster Emergency,
COMMONWEALTH OF PENNSYLVANIA, OFFICE OF THE GOVERNOR (June 3, 2020),
https://www.pema.pa.gov/Governor-
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Pennsylvania House of Representatives adopted a concurrent resolution ordering the
Governor to terminate the disaster emergency. The resolution provides, in relevant part:
Whereas, pursuant to Section 12 of Article I of the Constitution of
Pennsylvania, the power to suspend laws belongs to the legislature; and
Whereas, 35 Pa.C.S. § 7301(c) authorizes the General Assembly by
concurrent resolution to terminate a state of disaster emergency at any time;
and
Whereas, 35 Pa.C.S. § 7301(c) provides that upon the termination
of the declaration by concurrent resolution of the General Assembly, “the
Governor shall issue an executive order or proclamation ending the state of
disaster emergency”;
Therefore be it
Resolved (the Senate concurring) that the General Assembly, in
accordance with 35 Pa.C.S. § 7301(c) and its Article I, Section 12 power to
suspend laws, hereby terminate[s] the disaster emergency declared on
March 6, 2020, as amended and renewed, in response to COVID-19; and
be it further
Resolved, that upon adoption of this concurrent resolution by both
chambers of the General Assembly, the Secretary of the Senate shall notify
the Governor of the General Assembly’s action with the directive that the
Governor issue an executive order or proclamation ending the state of
disaster emergency in accordance with this resolution and 35 Pa.C.S.
§ 7301(c)[.]
H.R. Con. Res. 836, 2020 Gen. Assemb., Reg. Sess. 2019-20 (Pa. 2020) (capitalization
modified).6 On June 10, 2020, the Secretary of the Senate informed the Governor of the
concurrent resolution, writing: “I am notifying you of the General Assembly’s action and
Proclamations/Documents/06.03.2020%20TWW%20amendment%20to%20COVID%20
disaster%20emergency%20proclamation.pdf.
6 Although “H.R. Con. Res. 836” is the proper abbreviation for a concurrent
resolution, we refer to the resolution as “H.R. 836” for brevity’s sake and to accord with
the parties’ briefs.
[J-62-2020] - 4
the directive that you issue an executive order o[r] proclamation ending the state of
disaster emergency in accordance with this resolution and 35 Pa.C.S. § 7301(c).” 7
On June 11, 2020, Senate President Pro Tempore Joseph B. Scarnati, III, Senate
Majority Leader Jake Corman, and the Senate Republican Caucus (collectively, the
“Senators”) filed a Petition for Review in the Nature of a Complaint in Mandamus in the
Commonwealth Court, seeking to enforce H.R. 836. See Scarnati v. Wolf, 344 MD 2020.
One day later, the Governor filed in this Court an Application for the Court to Exercise
Jurisdiction Pursuant to Its King’s Bench Powers and/or Powers to Grant Extraordinary
Relief. On June 17, 2020, we granted King’s Bench jurisdiction and stayed the
Commonwealth Court proceedings. Order, 104 MM 2020, 6/17/2020.
In his Application, the Governor argues that this Court should declare H.R. 836 null
and void under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-41. We now address
the merits of the Governor’s Application and the Senators’ Briefs.8
7 Megan Martin, Secretary of the Senate, Letter to Governor Tom Wolf, 6/10/2020.
8 In a letter filed June 15, 2020, the Senators stated, “In terms of the merits of the
[Governor’s] Application, the Senators, as noted by [the Governor], see Appl[ication] at
13 n.14, have already filed a substantive brief in the Commonwealth Court, see Scarnati
v. Wolf, No. 344 MD 2020, and the Senators rely on the same to the extent the Court is
looking for a response on the merits.” Senators’ No-Answer Letter, 104 MM, 6/15/2020,
at 1. “The exercise of King’s Bench authority is not limited by prescribed forms of
procedure or to action upon writs of a particular nature; the Court may employ any type
of process or procedure necessary for the circumstances.” In re Bruno, 101 A.3d 635,
669 (Pa. 2014). Thus, we agreed to decide the issues raised in the Governor’s
Application based upon the filings submitted to this Court and to the Commonwealth Court
in Scarnati v. Wolf, 344 MD 2020. See Order, 104 MM 2020, 6/17/2020. We refer to the
Governor’s Application, which encompasses his legal arguments, as the “Governor’s
Application,” and we refer to the Brief of Petitioners in Support of Application of Expedited
Summary Relief, which the Senators submitted to the Commonwealth Court, as the
“Senators’ Brief.”
After granting King’s Bench jurisdiction, a number of motions were filed. We take
this opportunity to dispose of those motions.
[J-62-2020] - 5
II. Presentment
This dispute concerns whether the concurrent resolution is subject to the
presentment requirement embodied in the Pennsylvania Constitution. In common
First, we grant the Application of Representative Bryan Cutler and House
Republican Caucus for Leave to Intervene as respondents. Representative Cutler and
the House Republican Caucus (collectively, the “Representatives”) state that their
“interests . . . are aligned with the Senate respondents.” Id. at ¶ 12. Additionally, the
Representatives note that they “will adopt and join in the Petition for Review filed by the
Senate respondents and the” Senators’ Brief. Id. at ¶ 14. Thus, we deem the
Representatives to have joined the Senators’ brief, rather than intending to file a separate
brief with this Court. See Pa.R.C.P. 2328(a) (requiring that, in a petition to intervene,
“[t]he petitioner shall attach to the petition a copy of any pleading which the petitioner will
file in the action if permitted to intervene or shall state in the petition that the petitioner
adopts by reference in whole or in part certain named pleadings or parts of pleadings
already filed in the action”). Additionally, as the Governor is the petitioner in this Court,
the decision to allow the Representatives to intervene is not to be considered a ruling as
to whether the Representatives would have standing to intervene as petitioners in the
Commonwealth Court.
Second, we grant the Senators’ Application for Leave to File Reply Brief. Although
the Senators are the respondents in this Court, we grant the application as a supplemental
brief. For convenience, we refer to this document as the “Senators’ Reply Brief.”
Third, we grant the various applications for leave to file briefs as amici curiae. See
Application of SEIU HealthCare Pennsylvania for Leave to Participate as Amicus Curiae;
Application for Leave to File Brief as Amici Curiae by Members of the Democratic
Caucuses of the Pennsylvania House of Representatives and Senate of Pennsylvania;
Application of the Keystone Research Center and the Pennsylvania Budget and Policy
Center for Leave to Submit Amici Curiae Brief Nunc Pro Tunc in Support of Petitioner;
Application for Leave to File Amicus Brief by the Coalition for Affordable Utility Service
and Energy Efficiency in Pennsylvania, et al.; Application for Leave to File Amicus Curiae
Brief on Behalf of the Commonwealth Foundation for Public Policy Alternatives;
Application for Leave to File Amici Curiae Brief on Behalf of the Commonwealth Partners
Chamber of Entrepreneurs, et al.
Fourth, we deny the Senators’ Application for Leave to Present Oral Argument.
This case involves a discrete legal issue, and there are no factual disputes. The parties,
as well as amici, have provided ample and thoughtful briefing, and, because the subject
matter of this case implicates constitutional questions concerning separation of powers
as well as the effectiveness of legislative action relative to a rapidly evolving situation, it
must be decided without unnecessary delay.
[J-62-2020] - 6
parlance, the question is whether H.R. 836 is subject to the Governor’s veto power. Our
Commonwealth’s Constitution provides:
Every order, resolution or vote, to which the concurrence of both Houses
may be necessary, except on the question of adjournment, shall be
presented to the Governor and before it shall take effect be approved by
him, or being disapproved, shall be repassed by two-thirds of both Houses
according to the rules and limitations prescribed in case of a bill.
PA. CONST. art. III, § 9. That text has remained virtually unchanged since 1790. See PA.
CONST. of 1790, art. I, § 23, PA. CONST. of 1838, art. I, § 24, PA. CONST. of 1874, art. III,
§ 26. Our Constitution is clear: all concurrent resolutions, except in three narrow
circumstances identified below, must be presented to the Governor for his approval or
veto. To allow a concurrent resolution that does not fit into one of the exceptions to take
effect without presentment would be to authorize a legislative veto. In Commonwealth v.
Sessoms, 532 A.2d 775 (Pa. 1987), we adopted the reasoning of the Supreme Court of
the United States in Immigration and Naturalization Service v. Chadha, 462 U.S. 919
(1983), and found that the provisions of Article III, Section 9 “are integral parts of the
constitutional design for the separation of powers.” Sessoms, 532 A.2d at 778 (quoting
Chadha, 462 U.S. at 946). “[U]nder our Constitution[,] the legislative power, even when
exercised by concurrent resolution, must be subject to gubernatorial review.” Id. at 782;
see also W. Shore Sch. Dist. v. Pa. Labor Relations Bd., 626 A.2d 1131, 1135-36 (Pa.
1993). Because the Senators contend that H.R. 836 fits into one of the three recognized
exceptions to presentment, we examine those exceptions in turn.
A. The Exceptions to Presentment
The first exception to presentment is obvious from the plain text of Article III,
Section 9. Any concurrent resolution “on the question of adjournment” need not be
presented to the Governor. No party avers that H.R. 836 involves adjournment.
[J-62-2020] - 7
The second exception to presentment is a concurrent resolution proposing a
constitutional amendment. The Constitution itself, specifically Article XI, Section 1,
provides the “complete and detailed process for the amendment of that document.”
Kremer v. Grant, 606 A.2d 433, 436 (Pa. 1992). We have characterized the process of
amending our Constitution as “standing alone and entirely unconnected with any other
subject. Nor does it contain any reference to any other provision of the constitution as
being needed . . . . It is a system entirely complete in itself; requiring no extraneous aid,
either in matters of detail or of general scope, to its effectual execution.” Commonwealth
ex rel. Att’y Gen. v. Griest, 46 A. 505, 506 (Pa. 1900). Because “submission to the
governor is carefully excluded, . . . such submission is not only not required, but cannot
be permitted.” Id. at 507; see also Mellow v. Pizzingrilli, 800 A.2d 350, 359 (Pa. Cmwlth.
2002) (“Article XI has vested the power to propose amendments in the General Assembly.
Other than the express requirements set forth in Article XI, the procedure to be used in
proposing such amendments is exclusively committed to the legislature.”). No party
argues that H.R. 836 is a proposed amendment to our Commonwealth’s Constitution.
The third exception to presentment is not explicitly delineated, but rather inheres
in the structure of our Charter. The presentment requirement in Article III, Section 9
applies only to matters governed by constitutional provisions concerning the legislative
power. Griest, 46 A. at 508. In other words, “it is perfectly manifest that the orders,
resolutions, and votes which must be so submitted [to the Governor] are, and can only
be, such as relate to and are a part of the business of legislation.” Id. Although no
provision of the Constitution explicitly withdraws non-legislative resolutions from the
requirement of presentment, such resolutions involve only internal affairs of the
legislature. “Under the principle of separation of the powers of government, . . . no branch
should exercise the functions exclusively committed to another branch.” Sweeney v.
[J-62-2020] - 8
Tucker, 375 A.2d 698, 705 (Pa. 1977). The legislature, a co-equal branch of government,
has “the sole authority to determine the rules of its proceedings.” Pa. AFL-CIO ex rel.
George v. Commonwealth, 757 A.2d 917, 923 (Pa. 2000); see also PA. CONST. art. II,
§ 11 (“Each House shall have power to determine the rules of its proceedings . . . .”).
Similarly, resolutions that are investigatory or ceremonial in nature, although not
technically procedural, are solely within the purview of the legislature itself and need not
be presented to the Governor, as such resolutions are not “a part of the business of
legislation” that affects entities outside the legislative branch. Griest, 46 A. at 508.
As the Governor notes, “[i]n Russ v. Commonwealth, 60 A. 169 (Pa. 1905), this
Court explained the difference between resolutions that solely involve internal matters
within the General Assembly and those that reach beyond the walls of its two chambers.”
Governor’s Application at 17. In Russ, the General Assembly passed a resolution that
allowed members of the Senate and the House of Representatives to attend a ceremony
dedicating a monument to President Ulysses S. Grant and provided for expenses
associated with the ceremony. In distinguishing between resolutions that involved only
the internal affairs of the General Assembly and those with legal effect that require
presentment, we wrote:
If both houses had simply resolved to attend the exercises in a body, and
to adjourn for a day for that purpose, it would have been no concern of the
Governor, and they could have gone with or without his approval; but, if
more was embodied in the resolution, amounting practically to an
enactment authorizing special committees of the Senate and House to act
on behalf of the state in making suitable the recognition which both
branches of the Legislature had agreed upon, it was for the Governor to
approve or disapprove.
Russ, 60 A. at 171. Thus, when the legislature seeks to “act on behalf of the state” by
way of a concurrent resolution, that resolution must be presented to the Governor. Id.
Summarizing Russ and Griest in 1915, Attorney General Francis Brown opined:
[J-62-2020] - 9
[N]ot all joint or concurrent resolutions passed by the legislature must be
submitted to the Governor for his approval, but only such as make
legislation or have the effect of legislating, i.e., enacting, repealing or
amending laws or statutes or which have the effect of committing the State
to a certain action or which provide for the expenditure of public money.
Resolutions which are passed for any other purpose, such as the
appointment of a committee by the legislature to obtain information on
legislative matters for its future use or to investigate conditions in order to
assist in future legislation, are not required to be presented to the Governor
for action thereupon.
Joint or Concurrent Resolutions, 24 Pa. D. 721, 723 (Pa. Att’y Gen. 1915); see also
Concurrent Resolutions, 7 Pa. D. & C. (Pa. Att’y Gen. 1926) (embracing Attorney General
Brown’s opinion). We find that Attorney General Brown’s formulation accurately relates
the requirements of our Constitution and precedent. Specifically, we agree that whether
a concurrent resolution requires presentment depends upon whether the resolution
comprises legislation or has the effect of legislating.
Attorney General Brown correctly discerned that, when a court has to determine
whether a concurrent resolution is an act of legislating, the court must look to the
substance of that resolution, rather than adhering to a formulaic approach that confines
the court to the title or label of the resolution. As the Governor’s amici note, when the
federal Constitutional Convention added a provision to the federal Constitution analogous
to Article III, Section 9, see U.S. CONST. art. I, § 7, cl. 3, James Madison told the
Convention that, “if the negative of the President was confined to bills, it would be evaded
by acts under the form and name of resolutions, votes, [etc.].”9 The next day, Edmund
Randolph moved to insert what is now Article I, Section 7, Clause 3 into the draft of the
federal Constitution for the purpose of “putting votes, resolutions, [etc.], on a footing with
9 Brief of Amici Curiae, Members of the Democratic Caucuses of the Pennsylvania
House of Representatives and the Senate of Pennsylvania, at 12 (quoting Statement of
James Madison (Aug. 15, 1787), in 5 THE DEBATES IN THE SEVERAL STATE CONVENTIONS
OF THE ADOPTION OF THE FEDERAL CONSTITUTION 431 (Jonathan Elliot, ed., 1827)).
[J-62-2020] - 10
bills.” The Convention adopted the proposal.10 That Pennsylvania’s 1790 Convention
occurred just after the adoption of the federal Constitution, and that the language in the
two Constitutions is nearly identical lends support to the proposition that the substance of
the resolution, rather the formal title or procedure used for passage, should govern
whether the resolution has “the effect of legislating” and therefore must be presented to
the Governor.
The Senators do not dispute that resolutions with legal effect should be subject to
presentment. See Senators’ Brief at 23 (“In the practice of the Pennsylvania Legislature,
bills and joint resolutions intended to have the effect of laws have been transmitted to the
Governor for his approval.”) (quoting CHARLES B. BUCKALEW , AN EXAMINATION OF THE
CONSTITUTION OF PENNSYLVANIA 94 (1883)). Rather, the Senators contend that neither the
Governor’s Proclamation nor H.R. 836 had legal effect, and, thus, H.R. 836 should not be
subject to presentment.
Looking first to the Governor’s Proclamation, it is obvious that this order had legal
effect. The Proclamation transferred funds, suspended certain statutory and regulatory
provisions, and activated the Pennsylvania National Guard. See Governor’s Application
at 26-27 (listing actions taken by various state agencies pursuant to the Proclamation).
As we stated in Friends of Danny DeVito, “[t]he Emergency Code specifically recognizes
that under its auspices, the Governor has the authority to issue executive orders and
proclamations which shall have the full force of law.” Friends of Danny DeVito, 227 A.3d
at 892. The Proclamation had “the full force of law.” Id.
The Senators claim that the Proclamation was merely “a declaration of fact” and
“did not (and could not) prescribe the rules of civil conduct and, instead, established the
10 See Statement of Edmund Randolph (Aug. 16, 1787), in 5 THE DEBATES IN THE
SEVERAL STATE CONVENTIONS OF THE ADOPTION OF THE FEDERAL CONSTITUTION 431-32
(Jonathan Elliot, ed., 1827).
[J-62-2020] - 11
factual predicate necessary for other executive agencies to use certain powers granted
to them by statute.” Senators’ Brief at 27; see also id. at 28 (“[E]mergency proclamations
[a]re not laws, but rather formal announcements that create[] the circumstances
necessary for the exercise of certain statutory powers.”). Setting aside the Proclamation’s
direct legal effects, to distinguish between the Governor authorizing other agencies to act
and those other agencies taking actions pursuant to the Proclamation would be to elevate
form over substance. But for the Proclamation authorizing other agencies to act, those
other agencies could not have issued orders with the force of law, such as requiring the
closure of certain businesses. If nothing else, the legal effect of the Proclamation was to
allow the Governor to exercise powers granted to him by the General Assembly upon the
declaration of a disaster emergency.
Turning to H.R. 836, the Senators argue that this resolution “does not provide for
expenditure of public funds and does not commit the state to an affirmative act.” Id. at
30. With regard to the expenditure of public funds, we have ruled that a concurrent
resolution which spends public money requires presentment. For example, in Russ, we
decided that, had the General Assembly simply adjourned to attend the ceremony in
question, the resolution would not have required presentment. Yet, when the legislature
committed public money to the ceremony, the Governor’s approval (or a vote overriding
a veto) became necessary. Russ, 60 A. at 171. Similarly, in Scudder v. Smith, 200 A.
601 (Pa. 1938), we determined that a joint resolution required presentment because the
resolution both created a commission and appropriated $5,000 for that commission. Id.
at 602-04. But while the expenditure of funds is a sufficient condition for requiring
presentment, it is not a necessary one. See Joint or Concurrent Resolutions, 24 Pa. D.
at 721 (opining that resolutions “which have the effect of committing the State to a certain
action or which provide for the expenditure of public money” require presentment)
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(emphasis added). The General Assembly can pass a bill or resolution that has legal
effect even if the bill or resolution does not commit the Commonwealth to spending any
money. Each time the General Assembly adds a new crime to our Criminal Code, certain
conduct becomes illegal. One could not argue that the General Assembly could amend
the Criminal Code through a bill or concurrent resolution without presentment simply
because that bill or resolution did not appropriate funds. Cf. Commonwealth v. Kuphal,
500 A.2d 1205, 1216-17 (Pa. Super. 1985) (Spaeth, P.J., dissenting) (declaring that “[t]he
conclusion is therefore inescapable that” a concurrent resolution that rejected sentencing
guidelines was an “exercise of legislative power” that required presentment).
Effectively acknowledging a non-expenditure-based category of legislative
resolution, the Senators aver that, because H.R. 836 “does not authorize any action on
behalf of the state,” Senators’ Brief at 31, the resolution was not a legislative action.
Although in Russ we noted that a resolution authorizing the General Assembly “to act on
behalf of the state” would require presentment, Russ, 60 A.at 171,11 the purported
distinction between requiring the government affirmatively to act and prohibiting the
government from taking an action is no distinction at all.
In West Shore, we considered whether the General Assembly could use a
concurrent resolution, without presentment, to reestablish the Pennsylvania Labor
Relations Board (“PLRB”) after the agency was slated to be disbanded. We ruled that
“[m]erely the passage of a resolution by both chambers . . . reestablish[ing] an agency
set for termination . . . violates Article 3, Section 9 of our State Constitution.” West Shore,
626 A.2d at 1136. By way of further example, imagine that an executive branch agency
promulgates a new regulation that requires all businesses to purchase a fire extinguisher.
11 Cf. Joint or Concurrent Resolutions, 24 Pa. D. at 723 (writing that a concurrent
resolution “which ha[s] the effect of committing the State to a certain action” would require
presentment).
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The General Assembly, disagreeing with this regulation, passes a concurrent resolution
overturning the regulation. That concurrent resolution does not require the executive
branch to take any affirmative steps. To the contrary, the resolution forbids the executive
branch from acting to enforce the regulation. But one could not characterize the General
Assembly’s resolution, in this scenario, as intending no legal effect and thereby
functioning differently than any other prohibitory legislation. Just as a business’s legal
obligations would be affected by promulgation of the regulation, those same legal
obligations would be affected by its repeal.12
H.R. 836 acts in the same manner as the resolutions in West Shore and the above
hypothetical. Even if the Senators are correct that H.R. 836 does not require any
affirmative act on behalf of the Governor, the same was true in West Shore. There, the
concurrent resolution did not require the executive branch to act; it simply mandated that
the executive branch not allow the PLRB to terminate. Prohibiting the termination of the
PLRB had legal effect, just as prohibiting an agency from enforcing a regulation would
have legal effect.
Related to the Senators’ argument, the Dissenting Opinion (“Dissent”) asserts that
Section 7301(c)’s language regarding a concurrent resolution “does not bear on the
12 The Senators also cite Fabrizio v. Kopriver, 73 Dauph. 345 (Dauphin Cty. C.C.P.
1959). See Senators’ Brief, Exhibit 2. In that case, the court of common pleas stated
that, “if the resolution . . . does not commit the State to any affirmative action, then such
a resolution should not be within the purview of” Article III, Section 9. Fabrizio, 73 Dauph.
at 348. The Fabrizio Court was comparing a concurrent resolution setting up a legislative
investigating committee, but appropriating no funds, to the resolution in Scudder, where
the resolution both set up a committee and appropriated funds. Id. at 348-49. Thus, while
the action in Scudder involved the appropriation of funds, an affirmative act, it does not
appear that the court of common pleas considered a scenario involving a resolution that
forbid the executive branch from enforcing legal obligations. In any event, the decision
of a court of common pleas, even if that particular court was the predecessor to the
Commonwealth Court, see Senators’ Brief at 25 n. 15, is not binding upon this Court and
does not carry with it the weight of stare decisis.
[J-62-2020] - 14
essential relationship to conventional legislation.” Dissent at 3. As noted above, the
inclusion of Article III, Section 9 in our Constitution is not simply to require presentment
for “conventional legislation,” but rather to require presentment for all bills, “resolutions,
votes, [etc.],” Statement of James Madison (Aug. 15, 1787), supra, that have the effect of
legislating. Any resolution passed by the General Assembly pursuant to Section 7301(c),
including H.R. 836, has the effect of legislating. The resolution intends to prevent the
Governor from carrying out powers delegated to him under the Emergency Services
Management Code, powers which are enforceable with “the force and effect of law.” 35
Pa.C.S. § 7301(b); see also Friends of Danny DeVito, 227 A.3d at 872.
As amici observe, H.R. 836 “would drastically alter the enforcement and
suspension of certain state laws and regulations, economic activity across a wide variety
of sectors, medical and healthcare practices, public health operations, National Guard
deployment and other aspects of everyday life for millions of Pennsylvanians.” 13
Enforcement of H.R. 836, which requires the Governor to end the state of disaster
emergency, would have far-reaching legal consequences beyond the Governor simply
signing and publishing a new proclamation. It would prohibit the Governor from taking
legal actions, and that prohibition itself has legal effect. To distinguish between a
resolution that requires the Governor to take affirmative action and a resolution that
forbids him from enforcing the law would be to elevate form over substance and allow
“the negative of the” Governor to be “evaded by acts under the form of resolutions,”
Statement of James Madison (Aug. 15, 1787), supra. Article III, Section 9 protects against
such a result. Thus, H.R. 836 does not fit into the third exception to presentment.
13 Brief of Amici Curiae, Members of the Democratic Caucuses of the Pennsylvania
House of Representatives and the Senate of Pennsylvania, at 9-10; see also Governor’s
Application at 22 (describing the same).
[J-62-2020] - 15
The Dissent offers a novel view of both the text of our Constitution and our
precedent regarding the constitutionality of the legislative veto. The Dissent posits that
this Court should use a functionalist approach in determining whether a legislative veto
passes constitutional muster. See Dissent at 5-6 (“I believe that the present context
presents a compelling case that legislative vetoes should not be regarded as being per
se violative of separation-of-powers principles.”). Relative to this case, the Dissent
suggests that “the breadth of the essential delegation of emergency powers to the
executive in light of future and unforeseen circumstances justifies an equally
extraordinary veto power in the Legislature.” Id. at 3-4 n.2 (citing Commc’n Workers of
Am., AFL-CIO v. Florio, 617 A.2d 223 (N.J. 1992)); cf. id. at 4 (“In this respect, it is my
considered judgment that the emergency-powers paradigm is essentially sui generis.”).
To support its proposed exception to the requirement of presentment, the Dissent
offers two points. First, the Dissent does “not regard [Sessoms] as binding precedent in
the present -- and very different -- context.” Id. at 5; cf. id. at 4-5 n.3 (calling Sessoms
“incompletely reasoned” because it “failed to recognize the exception to presentment
requirement, deriving from the Griest decision, for matters that do not concern the
business of legislating”). While we evaluated a different statute in Sessoms, our opinion
there was clear: “[E]xcept as it relates to the power of each House to determine its own
rules of proceedings, under our Constitution the legislative power, even when exercised
by concurrent resolution, must be subject to gubernatorial review.” Sessoms, 532 A.2d
at 782. Sessoms repeatedly noted our adoption of the approach of the Supreme Court
of the United States. See id. at 779-80 (“[O]nce [the legislature] makes its choice enacting
legislation, its participation ends. [It] can thereafter control the execution of its enactment
only indirectly—by passing new legislation.”) (quoting Bowsher v. Synar, 478 U.S. 714,
733-34 (1986)) (emphasis omitted); id. at 780 (relying upon the reasoning of the Chadha
[J-62-2020] - 16
Court that “the legislative branch” cannot “directly or indirectly . . . retain some power over
the execution of the laws”). We reiterated this interpretation of Article III, Section 9 in
West Shore, see West Shore, 626 A.2d at 1135-36, and our lower courts also have
reasoned that Sessoms provides no exception to presentment, other than those
discussed above. See, e.g., MCT Transp. Inc. v. Phila. Parking Auth., 60 A.3d 899, 915
n.17 (Pa. Cmwlth. 2013)14 (“In short, the General Assembly cannot exercise a legislative
veto over an administrative agency’s budget. The power of the veto belongs only to the
executive.”); Dep't of Envtl. Res. v. Jubelirer, 567 A.2d 741, 749 (Pa. Cmwlth. 1989)15
(“Nothing less than legislation may suffice to override the rule-making power of the
[Environmental Quality Board] or any other executive agency.”). That Sessoms did not
discuss the Griest exception to presentment hardly renders Sessoms “incompletely
reasoned,” Dissent at 5 n.3, especially inasmuch as we endorsed the same exception in
West Shore, see West Shore, 626 A.2d at 1135 (noting that the resolution in question
“had the effect of law”). The Dissent stands alone in deriving an exception to presentment
from the type of legislation at issue.
Related to this first point, the Dissent cites only decisions from the New Jersey
Supreme Court and Justice Powell’s concurrence in Chadha. See Dissent at 4-6, 9. The
New Jersey Supreme Court, of course, has free reign to interpret that state’s Constitution,
but New Jersey’s approach, in Florio and Enorato v. New Jersey Building Authority, 448
A.2d 449 (N.J. 1982), not only does not bind this Court; it also contradicts our approach
to the legislative veto prescribed by our Constitution’s presentment clause (Article III,
14 We issued two per curiam orders affirming the Commonwealth Court’s decision.
See MCT Transp. Inc. v. Phila. Parking Auth., 81 A.3d 813 (Pa. 2013) (per curiam); MCT
Transp. Inc. v. Phila. Parking Auth., 83 A.3d 85 (Pa. 2013) (per curiam)
15 We vacated the decision of the Commonwealth Court on other grounds. Dep't of
Envtl. Res. v. Jubelirer, 614 A.2d 204 (Pa. 1992).
[J-62-2020] - 17
Section 9) and our precedent in Sessoms and West Shore. And while Justice Powell’s
concurrence in Chadha also endorses a functionalist model for interpreting a presentment
clause, the majority in Chadha, which this Court relied upon in Sessoms, rejected that
model. See Chadha, 462 U.S. at 946 (“The records of the Constitutional Convention
reveal that the requirement that all legislation be presented to the President before
becoming law was uniformly accepted by the Framers.”) (emphasis added).
In sum, “[t]here is no support in the Constitution or decisions of this Court for the
proposition that the cumbersomeness and delays often encountered in complying with
explicit Constitutional standards may be avoided” by characterizing the legislation as a
delegation of emergency powers. Id. at 959. A legislative veto in the context of a statute
delegating emergency powers might be a good idea. It might be a bad idea. But it is not
a constitutional idea under our current Charter.
B. Section 7301(c) Requires Presentment
Our conclusion that a concurrent resolution seeking to force the Governor to end
a state of disaster emergency has legal effect and does not fit into any of the three
recognized exceptions to presentment bears upon our interpretation of Section 7301(c)
itself. The concurrent resolution provision of Section 7301(c) provides: “The General
Assembly by concurrent resolution may terminate a state of disaster emergency at any
time. Thereupon, the Governor shall issue an executive order or proclamation ending the
state of disaster emergency.” 35 Pa.C.S. § 7301(c). “[T]he best indication of legislative
intent is the plain text of the statute.” Whalen v. Pa., Dep’t of Transp., Bureau of Driver
Licensing, 32 A.3d 677, 679 (Pa. 2011). Thus, we evaluate whether the plain text of
Section 7301(c) expresses the General Assembly’s intent that presentment not be a part
of the concurrent resolution process in that provision.
[J-62-2020] - 18
The Senators, see Senators’ Reply Brief at 8-12, and their amicus16 aver that
Section 7301(c) cannot be read to require presentment. Though providing little textual
analysis, the Senators point to the words “at any time,” “[t]hereupon,” and “shall issue” to
suggest that the General Assembly did not intend to require presentment for a concurrent
resolution under the statute. See Senators’ Reply Brief at 8. According to amicus, “[t]he
General Assembly purposely declined to include a veto mechanism in [S]ection 7301(c)
and thereby made manifest its intent to require ministerial gubernatorial action whenever
a concurrent resolution ends a state of disaster emergency.” 17 We acknowledge that the
Senators’ reading of Section 7301(c) is a reasonable one. In particular, the word
“[t]hereupon” could imply that the Governor must issue an executive order as soon as the
General Assembly passes the concurrent resolution, without the Governor having an
opportunity to approve or veto the resolution first. See Thereupon, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“Immediately; without delay; promptly.”).
However, the Senators’ interpretation of Section 7301(c) is not the only reasonable
reading of the statute. Section 7301(c) does not state unequivocally that the Governor’s
declaration of a disaster emergency is terminated the moment that the General Assembly
passes a concurrent resolution purporting to do so. If the General Assembly intended to
give itself the ability to terminate a state of disaster emergency unilaterally, there would
have been no need to involve the Governor in the equation at all. If this had been the
intent of the General Assembly, the language of Section 7301(c) would have been
considerably more straightforward and truncated, i.e., “the state of disaster emergency
will be terminated by passage of a concurrent resolution so stating.” Instead, the General
16 See Brief of Amicus Curiae, the Commonwealth Foundation for Public Policy
Alternatives, in Support of Respondents, at 12-15.
17 Brief of Amicus Curiae, the Commonwealth Foundation for Public Policy
Alternatives, in Support of Respondents, at 15.
[J-62-2020] - 19
Assembly chose to require an extra step: the Governor must terminate the declaration of
disaster emergency. The requirement in Section 7301(c) that the Governor must act to
end the disaster emergency is a sign that the General Assembly understood that its
concurrent resolution would be presented to the Governor, in conformity and compliance
with Article III, Section 9.18
The Concurring and Dissenting Opinion (“CDO”) disagrees. Specifically, the CDO
suggests that inclusion of a role for the Governor is “easily explained: the legislature
wields no executive power in this limited context and has no means to retract the chief
executive’s previously-issued proclamation, or to issue a new declaration or proclamation
undoing the previous one.” CDO at 3. But that conclusion is beside the point. The
General Assembly is well-aware that the power to declare or end a disaster emergency
is not an exclusively “executive power.”
As we explained in Friends of Danny DeVito, “[t]he broad powers granted to the
Governor in the Emergency [Services Management] Code are firmly grounded in the
Commonwealth’s police power.” Friends of Danny DeVito, 227 A.3d at 886. The
Commonwealth’s police power is not exercised by the Governor alone, but rather “is the
inherent power of a body politic to enact and enforce laws for the promotion of the general
welfare.” Commonwealth v. Barnes & Tucker Co., 371 A.2d 461, 465 (Pa. 1977). The
General Assembly, not just the Governor, can exercise the police power. See Nat’l Wood
18 This interpretation of Section 7301(c) accords with the procedures set forth in the
Legislative Procedures Manual, which mirrors Article III, Section 9:
Every order, resolution or vote, to which the concurrence of both houses is
necessary, except on the question of adjournment and except joint
resolutions proposing or ratifying constitutional amendments, is presented
to the Governor and before it takes effect is approved by him or, being
disapproved, may be repassed by two-thirds of both houses according to
the rules and limitations prescribed in case of a bill.
101 PA. CODE § 9.245.
[J-62-2020] - 20
Preservers, Inc. v. Dep’t of Envtl. Res., 414 A.2d 37, 39 (Pa. 1980) (adjudicating a dispute
about whether a statue was “a constitutional exercise of the Legislature’s police power”).
Indeed, the General Assembly’s very delegation of power to the Governor presupposed
the General Assembly’s inherent authority both to declare and to end disaster
emergencies under its lawmaking powers. See PA. CONST. art. II, § 1 (“The legislative
power . . . shall be vested in a General Assembly . . . .”). The General Assembly has the
power to terminate a declaration of disaster emergency without any action by the
Governor, aside from presentment and an overriding vote in the event of a veto. If the
legislature wishes to end a disaster emergency and satisfies presentment, followed either
by gubernatorial approval or by veto override, then further action by the Governor would
in any event be unnecessary. The Governor would simply be bound to follow the law. 19
If a statute or resolution is passed over the Governor’s veto, the Governor still must abide
by that law, even if the General Assembly does not specifically require that the Governor
enforce that law. See PA. CONST. art. IV, § 2 (“The supreme executive power shall be
vested in the Governor, who shall take care that the laws be faithfully executed . . . .”).
That the General Assembly decided to give the Governor a role in ending the emergency
disaster declaration in Section 7301(c) is strong evidence that the General Assembly
intended to abide by the Constitution, which also requires gubernatorial involvement.
“Under the canon of constitutional avoidance, if a statute is susceptible of two
reasonable constructions, one of which would raise constitutional difficulties and the other
of which would not, we adopt the latter construction.” Commonwealth v. Herman, 161
19 The CDO asserts: “It would have been impossible for the legislature to have
written this statute in a way that omits any mention of the Governor whatsoever while
simultaneously requiring some physical, executive action on his part.” CDO at 3. We
disagree. The General Assembly could have written the statute to provide for the
termination of a state of disaster emergency without the Governor issuing a subsequent
executive order or proclamation. Enactment of such a resolution, through the process of
presentment, could end the state of disaster emergency immediately.
[J-62-2020] - 21
A.3d 194, 212 (Pa. 2017). This canon of statutory interpretation is prescribed both by our
General Assembly and by our precedent. The legislative branch has advised this Court
that, “[i]n ascertaining the intention of the General Assembly in the enactment of a
statute,” we are to presume that the legislature “does not intend to violate the Constitution
. . . of this Commonwealth.” 1 Pa.C.S. § 1922(3). Duly incorporating this codified
presumption into our case law, we repeatedly have emphasized that, if a statute is
susceptible of two reasonable interpretations, we will interpret the statute in such a
manner so as to avoid a finding of unconstitutionality. See, e.g., Commonwealth v. Veon,
150 A.3d 435, 443 (Pa. 2016); MCI WorldCom, Inc. v. Pa. Pub. Util. Comm’n, 844 A.2d
1239, 1249 (Pa. 2004); Commonwealth v. Bavusa, 832 A.2d 1042, 1050 (Pa. 2003).20
Applying the canon of constitutional avoidance, Section 7301(c) must be read to
require presentment to the Governor. As discussed above, any resolution seeking to end
a declaration of disaster emergency has the effect of legislating, necessitating
presentment. Thus, although the Senators’ interpretation of Section 7301(c) is
reasonable, that interpretation would violate our Commonwealth’s Constitution. Because
there is another reasonable interpretation of Section 7301(c)—that the provision does
require presentment—we must read the statute in that manner. Therefore, because H.R.
836 was not presented to the Governor and, in fact, affirmatively denied the Governor the
20 We note that, “[a]lthough courts should interpret statutes so as to avoid
constitutional questions when possible, they cannot ignore the plain meaning of a statute
to do so.” Robinson Twp. v. Commonwealth, 147 A.3d 536, 574 (Pa. 2016). Courts
cannot disregard the General Assembly’s intent, as evinced by the plain text of the statute,
and rewrite that statute in order to avoid a constitutional question. In this instance, our
close examination reveals that the statutory provision in question is susceptible to two
reasonable interpretations.
[J-62-2020] - 22
opportunity to approve or veto that resolution,21 H.R. 836 did not conform with the General
Assembly’s statutory mandate in Section 7301(c) or with the Pennsylvania Constitution.
The Dissent contends that application of the canon of constitutional avoidance
should depend upon whether “the chosen construction substantially weakens the
Legislature’s ability to act as a check on the actions of a co-equal branch.” Dissent at 8
n.5. There is no basis in our jurisprudence to authorize creation of a sliding scale of
constitutional avoidance based upon whether the provision at issue involves one branch’s
ability to control the affairs of another branch. The General Assembly has prescribed for
this Court one standard for deciding constitutional avoidance questions: a presumption
“[t]hat the General Assembly does not intend to violate the Constitution . . . of this
Commonwealth.” 1 Pa.C.S. § 1922(3). We apply that standard today.
Both the Governor and the Senators point to precedent from this Court where we
have, and have not, applied the canon of constitutional avoidance in interpreting a
statutory provision that did not explicitly require presentment of a concurrent resolution.
For example, in Sessoms, we concluded that the General Assembly intended to require
presentment in a statute providing that the General Assembly could reject sentencing
guidelines adopted by the Pennsylvania Commission on Sentencing. Sessoms, 532 A.2d
at 782; see also Governor’s Application at 19. Conversely, in West Shore, we determined
that we could not interpret a provision of the Sunset Act, Act of December 22, 1981, P.L.
508 No. 142, to require presentment. West Shore, 626 A.2d at 1135-36; see also
Senators’ Reply Brief at 10-12. That we reached differing conclusions in these two cases
21 See H.R. 836 (requiring the Secretary of the Senate to “notify the Governor of the
General Assembly’s action with the directive that the Governor issue an executive order
or proclamation ending the state of disaster emergency”); see also Megan Martin,
Secretary of the Senate, Letter to Governor Tom Wolf, 6/10/2020 (“I am notifying you of
the General Assembly’s action and the directive that you issue an executive order o[r]
proclamation ending the state of disaster emergency in accordance with this resolution
and 35 Pa.C.S. § 7301(c).”).
[J-62-2020] - 23
on the question of constitutional avoidance confirms what every legal practitioner knows
to be true: every case, and every statute, must be evaluated independently. Evaluating
Section 7301(c), we find that there are two reasonable interpretations, and, thus, we must
apply our canon of constitutional avoidance as we weigh them.
Indeed, the case for constitutional avoidance in this case is stronger than in
Sessoms. The statute at issue in Sessoms provided that “[t]he General Assembly may
by concurrent resolution reject in their entirety any initial or subsequent guidelines
adopted by the [Pennsylvania Commission on Sentencing] within 90 days of their
publication in the Pennsylvania Bulletin.” Sessoms, 532 A.2d at 776-77 (quoting the
version of 42 Pa.C.S. § 2155(b) then in effect22). We interpreted Section 2155(b) to
require presentment even though that provision did not mention the Governor. By
contrast, the language of Section 7301(c) presents a stronger basis for reading the
presentment requirement into the provision because the General Assembly explicitly
provided for gubernatorial involvement.
In Sessoms, “we d[id] not find it fatal to” Section 2155(b) “that it d[id] not explicitly
require presentment of a rejection resolution to the [G]overnor,” as we could “imply such
a condition to avoid finding the statute unconstitutional on its face.” Id. at 782. Although
Sessoms is helpful in terms of evaluating Section 7301(c), our language there expressed
a truism: if a statute is ambiguous, a court should interpret that statute in such a manner
22 Section 2155(b) has since been amended by the General Assembly to read:
(b) Rejection by General Assembly.--Subject to gubernatorial review
pursuant to section 9 of Article III of the Constitution of Pennsylvania, the
General Assembly may by concurrent resolution reject in their entirety any
guidelines, risk assessment instrument or recommitment ranges adopted
by the commission within 90 days of their publication in the Pennsylvania
Bulletin pursuant to subsection (a)(2).
42 Pa.C.S. § 2155(b) (emphasis added).
[J-62-2020] - 24
as to avoid a finding of unconstitutionality. The Sessoms truism applied the canon of
constitutional avoidance in the context of Article III, Section 9. We do so again today.
While the canon of constitutional avoidance leads us to the interpretation we adopt
here, a reading of Section 7301(c) in its entirety further militates in favor of presentment.
In the clearest language possible, the statute authorizes the Governor to declare that a
disaster emergency has occurred or is imminent, to continue the state of disaster
emergency until such time as the Governor finds that the threat or danger has passed,
and, to the extent the threat has passed or an emergency no longer exists, to terminate
the state of disaster emergency by executive order or proclamation.23 Thus, while Section
7301(c) provides that the General Assembly may terminate a state of disaster emergency
at any time, the statute also provides that the state of disaster emergency ends only after
the Governor so finds. By reading the presentment requirement into Section 7301(c), we
afford meaning to all of the provisions of the statute. If the Governor does not agree with
the General Assembly that the emergency has ended, the Governor can exercise a veto,
a veto that, with any other legislation, can be overridden by a two-thirds vote of both
Houses of the General Assembly.
23 The Governor’s role in declaring and ending a state of disaster emergency is clear:
A disaster emergency shall be declared by executive order or proclamation
of the Governor upon finding that a disaster has occurred or that the
occurrence or the threat of a disaster is imminent. The state of disaster
emergency shall continue until the Governor finds that the threat or danger
has passed or the disaster has been dealt with to the extent that emergency
conditions no longer exist and terminates the state of disaster emergency
by executive order or proclamation, but no state of disaster emergency may
continue for longer than 90 days unless renewed by the Governor. The
General Assembly by concurrent resolution may terminate a state of
disaster emergency at any time. Thereupon, the Governor shall issue an
executive order or proclamation ending the state of disaster emergency.
35 Pa.C.S. § 7301(c) (emphases added).
[J-62-2020] - 25
Based upon the plain text of the statute and upon our canon counseling against
invalidation of statutes on constitutional grounds where possible, we hold that Section
7301(c)’s provision allowing the General Assembly to terminate a state of disaster
emergency by concurrent resolution requires presentment of that resolution to the
Governor. Because the General Assembly did not present H.R. 836 to the Governor for
his approval or veto, the General Assembly did not comply with its own statutory directive
in Section 7301(c).
The Senators observe that, in Friends of Danny DeVito, regarding the concurrent
resolution provision of Section 7301(c), we stated: “As a counterbalance to the exercise
of the broad powers granted to the Governor, the Emergency Code provides that the
General Assembly by concurrent resolution may terminate a state of disaster emergency
at any time.” Friends of Danny DeVito, 227 A.3d at 886; see also id. at 896 (“We note
that the Emergency Code temporarily limits the Executive Order to ninety days unless
renewed and provides the General Assembly with the ability to terminate the order at any
time.”). Nowhere in Friends of Danny DeVito did we state that the Emergency Services
Management Code allows the General Assembly to terminate a state of disaster
emergency by way of concurrent resolution without presentment. No party in Friends of
Danny DeVito presented to this Court the questions of interpretation of the concurrent
resolution provision or the constitutional demands of presentment. Nonetheless, that
language accords with our decision today. Section 7301(c) does indeed contain a
“counterbalance to the exercise of the broad powers granted to the Governor.” Id. at 886.
Confronted now with the duty to interpret Section 7301(c) and Article III, Section 9, and
informed by the advocacy of the parties and amici, we conclude that the legislative
[J-62-2020] - 26
counterbalance complies with the presentment requirement of our Commonwealth’s
Constitution.24
III. The Power to Suspend Laws
As an alternative argument, the Senators posit that the General Assembly could
end the state of disaster emergency through a concurrent resolution without presentment
under Article I, Section 12 of the Pennsylvania Constitution. See Senators’ Brief at 31-
45. That clause of our Constitution provides: “No power of suspending laws shall be
exercised unless by the Legislature or by its authority.” PA. CONST. art. I, § 12. The
Senators appear to make two distinct arguments with regard to Article I, Section 12. First,
they maintain that the provision gives the legislature the right to suspend laws unilaterally,
essentially asking that this Court recognize a new exception to presentment. See
Senators’ Brief at 31-40. Second, the Senators contend that the Governor’s powers
under Section 7301(c) were a delegation of this suspension power and that this Court
should permit the General Assembly to revoke its authority without presentment. See id.
at 40-45.
A. Article I, Section 12 Does Not Give the Legislature the Power to Act Unilaterally
The history of Article I, Section 12 indicates that the clause was intended as a
negative check on executive power, rather than an affirmative grant of power to the
legislature to act unilaterally. English monarchs had long asserted a royal prerogative to
suspend laws. “The suspending power was much more powerful than the veto because
it allowed a king to nullify not only bills that were presented for his assent but also all
statutes that pre-dated his reign—indeed, every law on the statute books.” Robert J.
Reinstein, The Limits of Executive Power, 59 AM. U. L. REV. 259, 278-79 (2009). After
24 Having decided that Section 7301(c) is not facially unconstitutional, we need not
reach the issue of whether any provision must be severed from the statute. Cf. CDO at
5-10; Senators’ Reply Brief at 12-17.
[J-62-2020] - 27
the Glorious Revolution of 1688, the English Parliament sought to limit the power of the
monarch, specifically with regard to the suspension of laws. Thus, the 1689 “English Bill
of Rights expressly barred the Crown from suspending the laws or issuing dispensations
that permitted individuals to ignore certain laws.” Saikrishna Bangalore Prakash, The
Imbecilic Executive, 99 VA. L. REV. 1361, 1365 (2013). The 1689 English Bill of Rights
specifically faulted “the late King James the Second . . . [for] suspending of laws and the
execution of laws without consent of Parliament.” 1 Wm. & Mary, ch. 2 in 3 Eng. Stat. at
Large 441 (1689). Accordingly, that document declared “[t]hat the pretended power of
suspending the laws or the execution of laws by regal authority without consent of
Parliament is illegal.” Id. § 1.
As states began enacting constitutions after our Nation declared independence,
the Framers of those Constitutions, still wary of executive power, adopted provisions
similar to that in the 1689 English Bill of Rights. See Steven G. Calabresi, Sarah E. Agudo
& Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are
Really Deeply Rooted in American History and Tradition?, 85 S. CAL. L. REV. 1451, 1534-
35 (2012) (listing early state constitutions with similar clauses). For example, the Framers
of early Virginia Constitutions “held [a] historic distrust [of concentrated executive power]
based on the ‘arbitrary practice’ of English Kings before the Glorious Revolution of 1688,”
and endorsed a provision preventing the executive from suspending laws unilaterally.
Hewell v. McAuliffe, 788 S.E.2d 706, 721 (Va. 2016). The Kentucky Supreme Court,
noting that the clause in the Kentucky Constitution “was modeled after a similar provision
in the Pennsylvania Constitution,” stated that the clause “was originally designed to reflect
the will of the framers to prevent suspension of duly-enacted laws by any entity other than
the constitutionally-elected legislative body, a power the British government had
ruthlessly exercised over the colonies.” Baker v. Fletcher, 204 S.W.3d 589, 592 (Ky.
[J-62-2020] - 28
2006). Thus, Article I, Section 12, like the clauses in other early state constitutions, traces
its roots to the 1689 English Bill of Rights. See Nicolette v. Caruso, 315 F. Supp. 2d 710,
726 (W.D. Pa. 2003).
The 1689 English Bill of Rights indicates that the analogous provision was aimed
at preventing English monarchs from suspending laws on their own initiative and was not
intended to transfer to Parliament the power to act unilaterally. Indeed, the text of the
1689 provision confirms this reading. After promulgation of the 1689 English Bill of Rights,
the monarch could not suspend laws “without the consent of Parliament.” 1 Wm. & Mary,
ch. 2, § 1 (emphasis added). It appears that, rather than shifting the power to suspend
laws from one branch to another, the purpose of the provision was to ensure a shared
power between King or Queen and Parliament, a form of what we commonly refer to as
checks and balances.25 Imputing this historical understanding to our own Constitution,
Article I, Section 12 does not empower the General Assembly to act alone, but rather
distributes the power to suspend laws between the legislative and executive branches.26
The placement of Article I, Section 12 in our Constitution’s Declaration of Rights
further indicates that the provision is a negative check on executive power rather than an
affirmative grant for the legislature to act without the Governor. Since 1790, the Framers
25 Unlike in our system of government, in the United Kingdom presentment has
evolved into a mere formality. However, even today, when Parliament passes a statute
that suspends law, it appears that royal assent is still required. For example, Parliament’s
bill responding to the COVID-19 pandemic provided that “[a] relevant national authority
may by regulations suspend the operation of any provision of this Act.” Coronavirus Act
of 2020, c. 7, § 88(1) (U.K.). That bill received royal assent. See Royal Assent, HOUSE
OF LORDS HANSARD (Mar. 25, 2020), https://hansard.parliament.uk/lords/2020-03-
25/debates/025CBE1A-37B3-4362-9FAC-94359D78E325/RoyalAssent.
26 Notably, past cases involving Article I, Section 12 have focused upon whether the
executive branch violated the provision. See, e.g., Commonwealth v. Williams, 129 A.3d
1199 (Pa. 2015); SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495 (Pa. 2014);
Hetherington v. McHale, 311 A.2d 162 (Pa. Cmwlth. 1973), rev’d on other grounds, 329
A.2d 250 (Pa. 1974).
[J-62-2020] - 29
of each of our Commonwealth’s Constitutions have placed the clause involving the power
to suspend laws in the section of the Constitution devoted to the protection of individual
liberty. See PA. CONST. of 1790, art. IX, § 12, PA. CONST. of 1838, art. IX, § 12, PA. CONST.
of 1874, art. I, § 12, PA. CONST. art. I, § 12. “[T]hose rights enumerated in the Declaration
of Rights are deemed to be inviolate and may not be transgressed by government.”
Gondelman v. Commonwealth, 554 A.2d 896, 904 (Pa. 1989). The Declaration of Rights
exists to protect Commonwealth citizens from government tyranny, not to delineate the
powers of any branch of government. See Senators’ Reply Brief at 24 (opining that the
placement of the clause in the Declaration of Rights is to “prevent tyranny of the Governor
in capriciously ordering citizens to do something through the suspension of law”). To this
end, the Declaration of Rights itself warns: “To guard against transgressions of the high
powers which we have delegated, we declare that everything in this article is excepted
out of the general powers of government and shall forever remain inviolate.” PA. CONST.
art. I, § 25. The Declaration of Rights, including Article I, Section 12, serves to protect
individuals from an overbearing government in general, not to empower any department
of that government. Article I, Section 12 therefore cannot, on its face, be read as a means
by which to bypass presentment in acts suspending prior legislation, where presentment
was required for their enactment.
A comparison of Article I, Section 12 with other provisions of our Constitution that
are exempt from presentment further supports this reading of the suspension power. As
noted above, Article III, Section 9 explicitly exempts resolutions pertaining to adjournment
from presentment. And Article XI of our Constitution sets forth a comprehensive scheme
for amending the Constitution. See Kremer, 606 A.2d at 436 (describing Article XI as a
“complete and detailed process for the amendment of that document”); Griest, 46 A. at
506 (“It is a system entirely complete in itself, requiring no extraneous aid, either in
[J-62-2020] - 30
matters of detail or general scope, to its effectual execution.”). Conversely, Article I,
Section 12 neither offers explicit language exempting the suspension power from
presentment nor describes a process in which the Governor has no role. It is unlikely that
the Framers would have granted such a far-reaching power in such an obfuscated
fashion. And authorizing the General Assembly to suspend laws unilaterally (i.e., without
presentment) is a far-reaching power indeed. To allow the legislature to suspend laws
without presentment would be to excise both presentment clauses from our Constitution.
Article I, Section 12 does not limit the temporal duration for which a law can be
suspended, nor does it specify which types of laws may be suspended. To grant the
General Assembly such broad authority would be to rewrite our Constitution and remove
the Governor from the lawmaking process. Such a view is inimical to our system of
checks and balances, a system in which presentment plays a critical role.
Relatedly, this Court has characterized the power of suspending laws as part of
the process of lawmaking. For example, when a party claimed that an action taken by
the executive branch violated Article I, Section 12 and Article II, Section 1, which vests
legislative power in the General Assembly, we read the two clauses together, writing that
those provisions “vest[] legislative power in the General Assembly and give[] it the power
to amend, repeal, suspend or enact statutes.” SEIU Healthcare Pa. v. Commonwealth,
104 A.3d 495, 500 n.3 (2014); see also McCreary v. Topper, 10 Pa. 419, 422 (1849)
(“That would be arrogating legislative power, and suspending law.”). The suspension of
statutes, like the amendment, repeal, or enactment of statutes, is a legislative action. And
legislative actions are subject to presentment. See PA. CONST. art. III, § 9; id. art. IV, §
15.
Finally, we would be remiss to “disregard the gloss which life has written upon”
suspension clauses in other constitutions. Youngstown Sheet & Tube Co. v. Sawyer, 343
[J-62-2020] - 31
U.S. 579, 610 (1952) (Frankfurter, J., concurring). In Kentucky, for example, which traces
its suspension clause to our Constitution, see Baker, 204 S.W.3d at 592, when the
legislature has suspended laws, it has done so through statutes presented to the
Governor for his or her approval. See, e.g., Commonwealth ex. rel. Beshear v. Bevin,
575 S.W.3d 673, 679-80 (Ky. 2019) (adjudicating a suspension clause case involving KY.
REV. STAT. § 12.028, which was enacted through bicameralism and presentment);
Lovelace v. Commonwealth, 147 S.W.2d 1029, 1034 (Ky. 1941) (“By this act of 1936
(Section 979b-5 et seq., Statutes), the General Assembly has exercised that
constitutional power and has authorized the courts to suspend the implications of the law
which require entry and pronouncement of judgment without unreasonable delay. This
law becomes a part of the statutory procedure and processes.”).
The Senators call our attention to the suspension clause in the Louisiana
Constitution. See Senators’ Brief at 39. Yet the corresponding clause in that Constitution
is fundamentally different from our own. Louisiana’s Constitution, which houses the
suspension clause in the article related to the legislative branch, provides:
Only the legislature may suspend a law, and then only by the same vote
and, except for gubernatorial veto and time limitations for introduction,
according to the same procedures and formalities required for enactment of
that law. After the effective date of this constitution, every resolution
suspending a law shall fix the period of suspension, which shall not extend
beyond the sixtieth day after final adjournment of the next regular session.
LA. CONST. art. III, § 20. Thus, the Louisiana Constitution explicitly exempts the
suspension of laws from the Governor’s veto; presentment is not required. See also
David Alexander Peterson, Louisiana’s Legislative Suspension Power: Valid Method for
Override of Environmental Laws and Agency Regulations?, 53 LA. L. REV. 247, 255-56
(1992) (detailing the original history of the clause at the 1973 Louisiana Constitutional
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Convention and noting that the delegates specifically voted against subjecting suspension
to gubernatorial veto).27
Based upon the original history of Article I, Section 12, the Framers’ decision to
place that provision in our Declaration of Rights, a comparison between Article I, Section
12 and other provisions from which presentment is excluded, and the practice of other
jurisdictions, we hold that Article I, Section 12 of the Pennsylvania Constitution does not
affirmatively grant the General Assembly the power to suspend laws unilaterally. Rather,
as an exercise in lawmaking, the suspension of laws must adhere to the requirement of
presentment, an essential component of our Constitution’s system of checks and
balances.28 Even if H.R. 836 amounted to a suspension of law by the General Assembly,
that does not save it from the constitutional presentment requirement.
27 Federal practice adds support to our reading of Article I, Section 12. Although the
federal Constitution contains no clause concerning the suspension of laws, it does state
that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, § 9,
cl. 2. The federal clause does not mention Congress, but the Framers’ decision to place
the clause in Article I, dealing with legislative power, means that only Congress can
suspend the writ of habeas corpus. See Hamdi v. Rumsfeld, 542 U.S. 507, 562 (2004)
(Scalia, J., dissenting) (“Although this provision does not state that suspension must be
effected by, or authorized by, a legislative act, it has been so understood, consistent with
English practice and the Clause's placement in Article I.”); Ex parte Merryman, 17 F. Cas.
144, 148 (Taney, Circuit Justice, C.C.D. Md. 1861) (“[F]or I had supposed it to be one of
those points of constitutional law upon which there was no difference of opinion, and that
it was admitted on all hands, that the privilege of the writ could not be suspended, except
by act of congress.”). Each time Congress has suspended the writ of habeas corpus, it
has done so through a statute, with presentment to the President. See Hamdi, 542 U.S.
at 562-63 (Scalia, J., dissenting) (listing statutes by which Congress has authorized
suspension of the writ); see also Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. __,
2020 WL 34548109, at *19 (2020) (Thomas, J., concurring) (noting that, to the Framers,
the clause suspending habeas corpus “likely meant a statute granting the executive the
power to detain without bail or trial based on mere suspicion of a crime of
dangerousness”) (emphasis added). Thus, Congress has understood its power to
suspend the writ of habeas corpus to require presentment.
28 The Senators additionally contend that the legislature can suspend laws either
through a bill or concurrent resolution. See Senators’ Brief at 39. We do not decide
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B. The General Assembly Cannot Use Unconstitutional Means to Overturn a
Governor’s Decision to Suspend Laws After Delegating That Power to the Governor
Finally, the Senators allege a violation of the non-delegation doctrine. In their initial
brief, the Senators aver that, because the Governor’s Proclamation itself was a
suspension of law, “the General Assembly not only retained for itself—as it must—the
ultimate authority for determining when a suspension of laws is no longer appropriate, but
also specified the vehicle through which it may be exercised: a simple majority concurrent
resolution.” Senators’ Brief at 42. For purposes of discussion, we assume, without
deciding, that the Proclamation amounted to a suspension of law under Article I, Section
12.
In their self-styled “Reply Brief,” the Senators argue, for the first time, that the
Emergency Management Services Code itself is unconstitutional under the non-
delegation doctrine. See Senators’ Reply Brief at 2-7. “A claim is waived if it is raised for
the first time in a reply brief.” Commonwealth v. Collins, 957 A.2d 237, 259 (Pa. 2008).
However, assuming arguendo that we can address the broader non-delegation claim, it
is unavailing.
The Senators’ initial argument is puzzling. They aver that the non-delegation
doctrine only kicks in if the Governor is correct in believing that the Proclamation was
“law.” Senators’ Brief at 3. The Senators confuse an order having the effect of law with
one exercising legislative power. The non-delegation doctrine forbids entities other than
the legislative branch from exercising the “legislative power,” as those entities do not have
“the power to make law.” Protz, 161 A.3d at 833.
The Governor does not argue that the Proclamation is a law in and of itself, but
rather that the Proclamation has “the force of law.” Governor’s Application at 28; see also
whether it is a bill or a concurrent resolution that is required to suspend a law. Whichever
constitutional method the General Assembly employs, presentment is required.
[J-62-2020] - 34
35 Pa.C.S. § 7301(b) (“[T]he Governor may issue, amend and rescind executive orders,
proclamations, and regulations which shall have the force and effect of law.”). This may
seem like a semantic difference, but it is not. Executive orders that affect individuals
outside the executive branch “implement existing constitutional or statutory law.”
Markham v. Wolf, 190 A.3d 1175, 1183 (Pa. 2018) (citing Shapp v. Butera, 348 A.2d 910,
913 (Pa. Cmwlth. 1975)). But an executive order or an administrative regulation
promulgated by an executive agency that implements a statute still has the force of law.
Otherwise, no entity outside the executive branch could be compelled to abide by a
regulation issued by an executive branch agency. Such a result would be inconsistent
with long-standing precedent. See, e.g., Bell Tel. Co. of Pa. v. Lewis, 177 A. 36 (Pa.
1935) (overruling a non-delegation challenge to a statute that permitted the Governor to
determine when telephone and telegraph lines could be constructed along highways).
The Senators also cite our decision in Protz for the two limitations underlying the
non-delegation doctrine: “First, . . . the General Assembly must make the basic policy
choices, and second, the legislation must include adequate standards which will guide
and restrain the exercise of the delegated administrative functions.” Protz, 161 A.3d at
834 (internal quotation marks and citation mitted). The Emergency Services
Management Code adheres to both standards.
The General Assembly, in enacting the statute, “ma[de] the basic policy choices.”
Id. The General Assembly decided that the Governor should be able to exercise certain
powers when he or she makes a “finding that a disaster has occurred or that the
occurrence of the threat of a disaster is imminent.” 35 Pa.C.S. § 7301(c). In Friends of
Danny DeVito, we reviewed whether the COVID-19 pandemic met that statutory
definition, chosen by the legislature. See Friends of Danny DeVito, 227 A.3d at 885-92.
That this Court relied upon the statute itself to make this ruling shows that the General
[J-62-2020] - 35
Assembly, not the Governor, made the basic policy choices about which circumstances
are necessary to trigger the Governor’s powers under the statute.
Additionally, the General Assembly has provided “adequate standards which will
guide and restrain” the Governor’s powers. Protz, 161 A.3d at 834. The General
Assembly gave the Governor specific guidance about what he can, and cannot, do in
responding to a disaster emergency. See 35 Pa.C.S. §§ 7301(d)-(f), 7302, 7303, 7308.
The powers delegated to the Governor are admittedly far-reaching, but nonetheless are
specific. For example, the Governor can “[s]upend the provisions of any regulatory
statute . . . if strict compliance with the provisions . . . would in any way prevent, hinder or
delay necessary action in coping with the emergency.” Id. § 7301(f)(1) (emphasis added).
Broad discretion and standardless discretion are not the same thing. Only those
regulations that hinder action in response to the emergency may be suspended. It may
be the case that the more expansive the emergency, the more encompassing the
suspension of regulations. But this shows that it is the scope of the emergency, not the
Governor’s arbitrary discretion, that determines the extent of the Governor’s powers
under the statute. The General Assembly itself chose the words in Section 7301(f)(1).
The General Assembly, under its lawmaking powers, could have provided the Governor
with less expansive powers under the Emergency Services Management Code. It did not
do so.
Returning to the Senators’ argument regarding the Governor’s alleged suspension
of law and the non-delegation doctrine, first, it is clear from the text of Article I, Section 12
and precedent that the General Assembly can delegate its suspension power to the
executive branch. Article I, Section 12 states that the power of suspending laws can be
exercised “by the Legislature or by its authority.” PA. CONST. art. I, § 12 (emphasis added).
During the Constitutional Convention of 1790, one delegate moved “to strike the words
[J-62-2020] - 36
‘or its authority,’” a motion which the Convention rejected, indicating that a majority of the
Framers intended the power to be delegable. 29 THE PROCEEDINGS RELATIVE TO THE
MINUTES OF THE CONVENTION THAT FORMED THE PRESENT CONSTITUTION OF PENNSYLVANIA
261 (1825). This Court has confirmed that the power to suspend laws can be delegated.
See Young v. Fetterolf, 182 A. 676, 680 (Pa. 1936) (“The vesting in certain officials or
persons by the legislative branch of government, of the power to suspend the operation
of laws, has more than once received unequivocal judicial sanction.”). 30 Even assuming
that the Governor’s delegated power under Section 7301(c) amounted to a power to
suspend laws, this Court already has concluded that the Governor’s actions do not violate
the separation of powers doctrine, Friends of Danny DeVito, 227 A.3d at 892-93, and, as
noted above, Section 7301(c) complies with the requirements of the non-delegation
doctrine.
In their distinct non-delegation argument with regard to the suspension of laws, the
Senators contend that, when the Governor suspends laws pursuant to a delegation of
authority, he “acts as the legislature’s agent and, thus, is subject to any restrictions the
General Assembly may see fit to put into place.” Senators’ Brief at 41. The same,
however, could be said of the Governor’s power to issue regulations, via an executive
branch agency, when that power is delegated from the legislative branch. In such an
instance, the Governor is acting as agent of the legislature, subject to the constraints in
29 The language in our 1790 Constitution did not include a second instance of the
word “by.” See PA. CONST. of 1790, art. IX, § 12 (“That no power of suspending laws shall
be exercised, unless by the legislature, or its authority.”).
30 Cf. Thuraissigiam, 2020 WL 34548109, at *19, *21-22 (Thomas, J., concurring)
(relating that the Framers of the federal Constitution contemplated, and early state
statutes allowed, a delegation of power to the executive to suspend the writ of habeas
corpus); Young, 182 A. at 679 n.2 (noting that “[t]he actual suspension of [the] writ [of
habeas corpus], however, has always been done by presidential proclamation” pursuant
to a delegation from Congress).
[J-62-2020] - 37
the authorizing statute. The Senators’ argument implies that this Court should create a
heightened standard for non-delegation when the delegated power is to suspend law, as
opposed to issuing regulations with the force of law. See id.; but see Senators’ Reply
Brief at 25. As stated above, the power to suspend laws is part of the general legislative
power, see SEIU Healthcare, 104 A.3d at 495; McCreary, 10 Pa. at 422, and we see no
reason to treat suspending laws differently from enacting, amending, or repealing laws
for the purpose of the non-delegation doctrine. Moreover, this Court already has declared
that the “implication [of Article I, Section 12] does not alter the restrictions on delegating
legislative decision making as embodied in Article II, Section 1.” W. Phila. Achievement
Charter Elementary Sch. v. Sch. Dist. of Phila., 132 A.3d 957, 968 (Pa. 2016); see also
Senators’ Reply Brief at 25 (noting that the delegation of the suspension power is “subject
to the restrictions reflected in existing non-delegation principles drawn from Article II,
Section 1,” and citing West Philadelphia). Thus, the same restrictions on delegating
power apply in all legislative contexts, including when delegating the power to suspend
laws.
The Senators may be frustrated that, the General Assembly previously having
delegated power to the Governor, the rescission of that power requires presentment,
perhaps necessitating a two-thirds majority to override a veto. But the potential for such
frustration inheres whenever the legislative branch delegates power to the executive
branch in any context. The General Assembly itself decided to delegate power to the
Governor under Section 7301(c). Current members of the General Assembly may regret
that decision, but they cannot use an unconstitutional means to give that regret legal
effect. The General Assembly must adhere to the constitutional requirement of
presentment even when attempting to overturn the Governor’s delegated putative
authority to suspend laws.
[J-62-2020] - 38
Over one hundred years ago, when confronting a similar issue of a concurrent
resolution and the need for presentment, we stated:
The protection against unwise and oppressive legislation, within
constitutional bounds, is by an appeal to the justice and patriotism of the
representatives of the people. If this fail[s], the people in their sovereign
capacity can correct the evil, but courts cannot assume their rights. The
judiciary can only arrest the execution of a statute when it conflicts with the
Constitution. It cannot run a race of opinions upon points of right, reason,
and expediency with the lawmaking power. . . . If the courts are not at liberty
to declare statutes void because of their apparent injustice or impolicy,
neither can they do so because they appear to the minds of the judges to
violate fundamental principles of republican government, unless it should
be found that these principles are placed beyond legislative encroachment
by the Constitution.
Russ, 60 A. at 173 (quoting COOLEY ON CONSTITUTIONAL LIMITATIONS, c. 7, §§ 4, 5 (6th ed.
1890)). Members of the General Assembly and residents of our Commonwealth have
differing opinions on how to respond to the COVID-19 pandemic. Some may believe that
the Governor’s exercise of power under Section 7301(c) is necessary and proper. Others
may feel that Section 7301(c), and the Governor’s subsequent Proclamation, is “unwise
and oppressive legislation.” Russ, 60 A. at 173. As members of the judicial branch, we
do not, and indeed cannot, take positions on such matters of policy, because, aside from
the domain of common law, “setting public policy is properly done in the General
Assembly and not in this Court.” Senators’ Reply Brief at 30. We “are not at liberty to
declare statutes void of their apparent injustice or impolicy.” Russ, 60 A. at 173. Our
function is far more restrained. In this instance, we determine only whether the actions
of our sister branches of government have complied with our Commonwealth’s
Constitution and statutory law.
The General Assembly’s attempt, through H.R. 836, to overturn the Governor’s
Proclamation of Disaster Emergency without presentment, violated Section 7301(c) of the
Emergency Services Management Code. As an act with legislative effect, H.R. 836, like
[J-62-2020] - 39
any concurrent resolution offered under Section 7301(c), required presentment, a key
component of our Constitution’s balance of powers among the several branches of
government, a balance that prevents one branch from dominating the others. H.R. 836
did not meet the criteria allowing for any exception to presentment, and our interpretive
canons compel us to read Section 7301(c) as requiring presentment. Additionally, Article
I, Section 12 of the Pennsylvania Constitution does not empower the legislature to act
unilaterally to suspend a law, and the Governor’s purported suspension of law did not
violate the non-delegation doctrine. Thus, because the General Assembly intended that
H.R. 836 terminate the Governor’s declaration of disaster emergency without the
necessity of presenting that resolution to the Governor for his approval or veto, we hold,
pursuant to our power under the Declaratory Judgments Act, 42 Pa.C.S. § 7532, that H.R.
836 is a legal nullity.31
Justices Baer, Todd and Donohue join the opinion.
Justice Dougherty files a concurring and dissenting opinion.
Chief Justice Saylor files a dissenting opinion in which Justice Mundy joins.
31 Having resolved this case, we lift our order staying the proceedings of the
Commonwealth Court in Scarnati v. Wolf, 344 MD 2020. See Order, 104 MM 2020,
6/17/2020.
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