Harrisburg Capitol

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HARRISBURG — Government and health care industry officials scrambled Thursday to understand the potential implications of the legal fight between Gov. Tom Wolf and the General Assembly over ending the state’s coronavirus emergency declaration.

Independent legal and public policy experts said it’s unlikely that the courts will force the governor to end his emergency declaration or that it would matter much if they did.

“We’re in a delicate situation, it’s hard to play the what-if game,” said Zach Shamberg, president and CEO of the Pennsylvania Health Care Association.

Shamberg said that for long-term care facilities, there are concerns that ending the disaster declaration could interfere with the availability of federal stimulus funding.

There’s also worry that ending the emergency declaration could end state moves including allowing health care professionals with out-of-state licenses to work in Pennsylvania, he said.

“I have been assured that the funding is not going to go away and I’ve been assured that those waivers are not going away,” regardless of who prevails in court, Shamberg said. But the uncertainty is still stressful for facility operators.

Chris Borick, a political science professor at Muhlenberg College, said that it’s highly unlikely that the General Assembly would have sought to end the disaster declaration if they thought it might cost the state stimulus funding.

“People are looking for an opportunity to make a statement and we’re seeing a display of power — both real and symbolic,” Borick said.

The General Assembly late Tuesday approved a resolution calling on the governor to end the emergency declaration he first issued on March 6. Wolf on Wednesday refused, saying the General Assembly didn’t have the authority to dictate that he end the declaration. The Senate Republicans filed a lawsuit in Commonwealth Court seeking to get the state to abandon Wolf's emergency declaration.

Conflicting signals

Rick Schuettler, executive director of the Pennsylvania Municipal League, said that with the General Assembly and governor giving conflicting directions, it’s hard to explain to the public where things stand and what the implications of ending the disaster declaration would be.

“We would be reluctant to get in the middle of that,” he said.

Many local governments passed their own emergency declarations to allow for them to better respond to the pandemic, Schuettler said. Exactly how many did so, wasn’t immediately clear.

If the state’s emergency declaration comes to an end, it wouldn’t force local government to end their emergency declarations, he said.

There are areas where ending the disaster declaration would create real uncertainty over how local officials are supposed to respond.

The state passed Act 17 in April, which requires that first-responders get up to 60 days paid leave if they come down with coronavirus. Schuettler said he wasn’t sure whether ending the disaster declaration would end that benefit, as well.

The state relaxed open meeting rules to allow local governments to meet remotely. If the disaster order is ended, legally local governments might need to begin resuming in-person meetings to comply with open meetings laws, even while acknowledging that providing social-distancing for would be difficult, he said.

Like the other groups, the Hospital and Health System Association of Pennsylvania “is closely monitoring” the dispute between the governor and the General Assembly, said Rachel Moore, a HAP spokeswoman.

The hospital association believes that many of the regulatory changes put in place to help respond to the pandemic proved so worthwhile they should remain in place whether the emergency declaration ends or not, she said.

“Even as the state continues the gradual process of reopening, COVID-19 will be with us for a long time,” Moore said. “These waivers have helped Pennsylvanians gain greater access to telemedicine, which has become widely adopted as an effective — and even preferred — way to obtain primary and specialty care during the pandemic. Hospitals and health care providers also have been able to streamline the provider licensure process and have experienced reduction in burdensome red tape.”

Legal questions

"The General Assembly will have a difficult time arguing that it has the constitutional authority to countermand the governor's order," said Michael Dimino, a law professor at Widener University Commonwealth Law School.

Wolf and Democrats have pointed to Article 3 of the state Constitution which states:

“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.”

Republicans are arguing that they are trying to employ the powers in Article I, Section 12 of the Constitution which says that the power to suspend laws rests with the General Assembly.

The problem with that view is that the courts could determine that any legislation to suspend laws would still need to be passed like a normal bill and presented to the governor, he said.

Bruce Ledewitz, a law professor at the Duquesne University School of Law, agreed that the General Assembly “is not in a great position” in trying to get the court to end the emergency declaration over the governor’s refusal to do so.

But the General Assembly could prevail if a judge decides that the Legislature wouldn’t have passed the legislation giving the governor the power to declare an emergency if lawmakers didn’t also believe they had the authority to end the emergency declaration.

Supreme Court Justice Christine Donohue pointed to the perceived power of the General Assembly to end disaster declarations in an opinion released in April.

“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 at any time,” Justice Donahue wrote in the opinion rejecting a request by a political candidate and business owners seeking to end the governor’s business shutdown.

“The governor is sitting on a land mine,” Ledewitz said.

At the same time, the broader implications of the challenge to emergency declaration hinge on whether it would include ending the business reopening strategy.

“I think this is political grandstanding,” he said. Ending the order completely and allowing all business to resume “would be a disaster.”

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