Voters choose to scale back executive power, but what happens next?

In a rebuke of Gov. Tom Wolf’s handling of the COVID-19 pandemic, Pennsylvania voters approved two ballot questions that will make lasting changes to the state constitution and limit the breadth of a governor’s ability to unilaterally respond to various emergencies.

The constitutional amendments, which were approved by voters on Tuesday, will limit the length of a gubernatorial emergency declaration, which gives governors broad authority to issue executive orders with the force of law. Under the changes, such declarations will be limited to 21 days, unless extended by state lawmakers. Another change approved by voters will give the General Assembly the power to terminate an emergency declaration without needing the governor’s signature. 

The ballot questions were largely framed as a referendum of Wolf’s COVID-19 response, which relied heavily on executive orders, particularly in the early months of the pandemic when the Democratic governor issued sweeping executive orders to close businesses, restrict in-person instruction at schools and require residents to remain at home as part of an effort to limit spread of the coronavirus. 

But with the ballot questions now in the past, questions surround the future of Wolf’s COVID-19 emergency declaration, which gave Wolf the broad authority to respond via executive order. Lawmakers have already attempted to terminate the declaration multiple times, but were unsuccessful due to Wolf’s ability to veto the resolution that sought to terminate his emergency declaration. 

Now, with Wolf’s veto pen out of the picture, lawmakers have an easier path to ending Wolf’s COVID-19 emergency declaration, as well as other emergency declarations, like one dedicated to bolstering the state’s efforts to combat the opioid epidemic. 

In a joint statement, Pennsylvania House Speaker Bryan Cutler and House Majority Leader Kerry Benninghoff, both Republicans, said the approval of the ballot questions represents a rejection of unilateral power. 

“The people of Pennsylvania have exercised their vote and resoundingly reaffirmed their desire for a government with strong checks and balances that works in their interests and not for its own power,” the GOP leaders said in a joint statement. “In doing so, they have rejected the mutation of emergency authority into unilateral, one-person control that seeks expediency over the rule of law.”

Senate Majority Leader Kim Ward, who was the prime sponsor of the legislation that put the questions on the ballot, and Senate President Pro Tempore Jake Corman said Wednesday in a joint statement that

“Pennsylvanians have made their choice clear — they want to see more collaboration and better results from their state government when responding to emergencies. This is a responsibility that the Senate Republican Caucus takes seriously, and as leaders we are all committed to working together in the best interests of our Commonwealth,” the leaders said. “In the weeks ahead, we encourage Governor Wolf to come back to the table and discuss not only how we can better manage emergencies like the current pandemic, but also how we can help our state recover from COVID-19.”

Wolf’s last renewal of the COVID-19 emergency declaration came on Feb. 19, meaning it’s set to expire Thursday at midnight.

Jason Gottesman, a spokesperson for Benninghoff, the House Republican Leader, said the 21-day limit on emergency declarations will likely not take effect until Tuesday’s election results are certified.

“The current COVID-19 related disaster declaration is set to expire on its own after today. This is not a function of the General Assembly, or anything to do with the election yesterday, but is tied to the 90 days from when the governor renewed the declaration. If it expires after today, it is only because the administration does not renew it,” Gottesman said.
 

Gottesman said House Republicans have been examining the legislative options available to them regarding the emergency declaration and will formulate their plans in the coming days and weeks.

Lyndsay Kensinger, a spokesperson for Wolf, said in an email that the administration will be in contact with legislators soon to discuss an extension of the COVID-19 emergency declaration. 

“The disaster declaration allows for the suspension of regulations for medical professionals, gives the commonwealth the ability to access federal funding, and assists with the activation and payment of the National Guard, among other important operations,” Kensinger said. “The vote on the disaster declaration constitutional amendments does not impact the past or current mitigation orders.”

“We hope that the General Assembly will recognize the importance of the disaster declaration for first responders and Pennsylvanians who rely on federal funding during times of emergency,” Kensinger added.