U.S. Supreme Court Gets First COVID-19 Case: Are Gubernatorial Powers Asserted During the COVID-19 Pandemic Unconstitutional?

By Brett Krantz & Mark Rasch

Will the U.S. Supreme Court find that the closures of businesses by various governors were unconstitutional and overbroad or inappropriate? We may just find out.

A group of Pennsylvania businesses which had been ordered closed by Gov. Tom Wolf – led by a candidate for Pennsylvania State Representative, Danny DeVito (no, not that one) – sued the state asserting that the closures were arbitrary and unconstitutional. In a 4-3 vote on April 13, 2020, the Supreme Court of Pennsylvania denied the request to stay the governor’s order. But the businesses decided to seek a stay of the same order from the U.S. Supreme Court.

The petition for a stay was sent to Justice Alito who is responsible for petitions from jurisdictions within the Third Circuit – which includes Pennsylvania. The petition initially asserted that the restrictions imposed were unnecessary because as a factual matter: (a) lockdown policies are not evidence-based; (b) the models used to support the lockdowns are a dubious basis for a public policy decision; (c) the flattening of the curve is due to the most vulnerable dying first as much as the lockdown; (d) COVID-19 is a “mild disease” and similar to the flu; (e) the mortality rate will be much lower than the projected numbers because most people who get the disease will never even notice they were infected; (f) it was the novelty of the disease that scared people and made political leaders want to look strong and decisive by ordering lockdowns; and (g) the correct policy would have been to protect the elderly and the infirm and to allow the disease to spread through the population so that herd immunity could work to build the immunity of healthy Pennsylvanians.

As the U.S. Supreme Court is a court of limited jurisdiction and may rule on “federal questions,” the Pennsylvanians asserted that the court should procedurally stay the governor’s order because: (1) the financial impact of the order violates the Takings Clause under the Fifth Amendment  (temporary taking of private property for the public interest); (2) it violated both procedural due process and equal protection under the Fourteenth Amendment; and (3) it violated the rights of free speech and assembly granted in the First Amendment,.

On April 27, 2020, Justice Alito agreed to consider the stay request. If Justice Alito issues a stay putting into question a governor’s constitutional authority to close business and limit travel, this could impact the COVID-19 decisions of every governor in the country and could limit or structure state authority if and when similar issues arise.

Since the original decision, Governor Wolfe has modified the Executive Order, loosening restrictions in some more rural counties and allowing certain less “essential” businesses to reopen effective 12:01 a.m., Friday, May 8, 2020, and establishing a plan to reopen the entire Commonwealth. This may bring the standing of some of the business owners into question.

Obviously, if the court stays the Supreme Court determines that, during a pandemic, governors do not have the constitutional authority to close businesses and limit travel, the case could have serious implications for the responses to the COVID-19 pandemic, and the authority of states to respond. This is a decision that all business owners should pay attention to as it could impact, among other things: (1) how you have to respond to closure and back-to-work orders; (2) the proper type and amount of insurance you should have moving forward; (3) issues regarding employees and working while an order is in place; (4) the role, ability and limitations on state  governmental power during the time of crisis, including if the virus increases after states re-open or reappears later in the year.

The Court has no timetable for the grant or denial of the motion for a stay.

If you have questions or would like to discuss further, please reach out to Brett Krantz (bk@kjk.com or 216.736.7238) or Mark Rasch (mdr@kjk.com or 301.547.6925).