Scaling back Wolf’s emergency powers

Pennsylvania voters will head to the polls on May 18 with a lot of power in their hands — power that could potentially determine whether the governor loses some of his own. Voters will encounter two major ballot questions that will serve as a de facto referendum on Gov. Tom Wolf’s COVID-19 pandemic response, while also shaping the breadth of gubernatorial power for years to come.

The ballot questions are the latest attempt from Harrisburg Republicans to scale back the governor’s broad emergency powers, which allow Wolf to issue sweeping executive orders with the force of law when a disaster emergency is declared. Wolf, a Democrat, has made extensive use of executive orders to respond to the coronavirus pandemic under his March 6, 2020 disaster emergency declaration for COVID-19. Some of Wolf’s most sweeping actions came in the early months of the pandemic when he closed businesses, shut down schools and issued statewide stay-at-home orders. 

The General Assembly’s Republican leaders say Wolf has relied too heavily on the expanded emergency powers granted to him under the state’s Emergency Management Services Code, while Wolf says his mitigation measures were necessary to quell the spread of COVID-19 and keep hospitals from being overrun. Republican lawmakers, along with some Democrats, moved last year to terminate Wolf’s COVID-19 disaster declaration — and in effect, Wolf’s expanded emergency authority — but the effort was quashed when the state Supreme Court ruled that Wolf needed to sign off on the effort in order for it to take effect. Wolf promptly vetoed the resolution. 

That defeat forced lawmakers to get creative, and led to the introduction of a proposed constitutional amendment to overhaul gubernatorial disaster powers. Rather than change state law through an ordinary bill, a constitutional amendment allows legislators to bypass the governor’s desk entirely by posing the questions directly to voters. Legislators must pass proposed changes to the state constitution in the same form in two consecutive sessions before they are placed on the ballot for voters to consider — a feat that was completed with impressive speed over the last year. 

But with May 18 looming, voters have two important decisions ahead of them that will make lasting changes to the state constitution and the timeframe in which a governor can issue a disaster declaration. 

One ballot question pertains to whether or not the legislature should be able to terminate a disaster declaration without the governor’s signature.

Currently, a resolution to terminate any disaster declaration must be approved by the governor in order to take effect. If a governor vetoes a termination resolution, as Wolf did last year, the only way for a disaster declaration to be terminated is with a veto override vote, which requires a two-thirds vote of each legislative chamber.

However, if voters vote “yes” and approve this ballot question, the legislature would be able to terminate a disaster declaration with a simple majority vote of each house — without needing the governor’s signature.

The second change voters will decide on is whether or not to limit the scope of a disaster declaration implemented by the governor.

Under the state’s Emergency Management Services Code, disaster declarations — also referred to as disaster emergency declarations — are limited to 90 days. A governor may, however, extend a disaster declaration an unlimited number of times, as Wolf has done with both COVID-19 and the opioid epidemic in Pennsylvania.

If the second ballot question is approved by voters, disaster declarations would be constitutionally limited to 21 days. Additionally, this amendment would require any extensions to be approved by the legislature, rather than the governor. 

If voters adopt the two emergency-related ballot questions, Wolf Administration officials suggest that the result will do more than just offer a rebuke of Wolf’s coronavirus-related policies, arguing that it could also tie the hands of future governors during various emergencies. 

In a press conference on Tuesday, Randy Padfield, director of the Pennsylvania Emergency Management Agency, warned that termination of the COVID-19 disaster declaration could jeopardize federal funding for the state. Padfield added that scaling back the allowed length of a disaster declaration could hamper continuity during an emergency response. 

“The law as it stands currently allows for a balance of legislative power,” Padfield said. “These amendments would significantly disrupt that balance at the potential detriment of those most affected by future disasters, and interject politics further into a process that should be removed as possible from partisan politics for the benefit of all citizens of the commonwealth.”

But while the Wolf Administration posits that the constitutional changes could have dangerous ramifications, legislative Republicans disagree, and have made clear that they believe the amendments would help re-balance Pennsylvania’s three branches of government.

Jason Gottesman, a spokesperson for the House Republican Caucus, said in a statement Tuesday that the two proposed constitutional amendments wouldn’t impact the current COVID-19 disaster declaration at all, but rather put in place a mechanism for legislators to terminate it if needed.

“First, should the emergency disaster declaration amendments be adopted, the General Assembly would then be able to renew the emergency disaster declaration in whole or in part or not at all,” Gottesman said. “To argue the emergency disaster declaration would automatically disappear is, at best, a half-truth. To also argue that having a legitimate debate about continuing an emergency disaster declaration is inappropriate is, of itself, undemocratic.”

“What these amendments would ultimately do is reinsert the General Assembly—the voice of the people — into these discussions,” Gottesman added.

Voters, also on May 18, will decide on two other questions, including whether or not to make municipal fire and EMS companies eligible for loans, as well as a question that would prohibit the denial or abridgment of rights based on race or ethnicity. All Pennsylvania voters, regardless of political party or affiliation, may vote on the ballot questions during the May 18 municipal primary, according to the Pennsylvania Department of State.