Attorney: Lawmakers ‘can’t just bypass’ Constitution in fight over ending Wolf’s disaster declaration

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HARRISBURG, Pa. (WHTM) – Disagreement is still looming under the dome in Harrisburg, over a resolution to end Governor Wolf’s disaster emergency.

The Governor says the General Assembly cannot undo his March declaration, but Republicans are not budging – saying the Governor is wrongfully interpreting the law.

Attorney Scott Stedjan, who works now with the lawfirm Killian & Gephart, used to work for the Commonwealth Court of Pennsylvania, which is where a Senate-GOP lawsuit was filed Wednesday against the Governor.

Stedjan believes the law is on Wolf’s side.

“There’s a structure to this, where the General Assembly must pass the laws and they are signed by the Governor…they can’t just bypass that,” he said.

Up for debate is whether House Resolution 836 — which passed both chambers this week and would end Wolf’s COVID-19 disaster emergency — needs his approval to take effect; Stedjan says no.

“One branch cannot direct the implementation of something to another branch, they share power,” Stedjan said. “[The General Assembly] cannot direct the execution of the law they passed, the only way they can do that is by passing a new law. All laws must be interpreted to be constitutional, in a way that would make them constitutional.”

But Republicans argue the state code that allowed Wolf to declare a disaster, is the same code allowing them to undo it, saying after a concurrent resolution has been passed like in this case, the statute states that “the Governor shall issue an executive order or proclamation ending the state of disaster emergency.” They say emphasis is on the word ‘shall’, meaning he is required to do so.

The Wolf administration, meanwhile, says the state Constitution trumps that code. They cite Art. III, § 9. Action on concurrent orders and resolutions which says in part: “Every order, resolution or vote…shall be presented to the Governor and before it shall take effect, be approved by him.”

Wolf is also seeking clarity in court, to have a third party weigh in.

“Whenever there is a dispute between the executive and the General Assembly, someone has to be the referee,” Stedjan said. “If the Governor disapproves of the resolution, then it must go back to those chambers for them to vote and override that veto by two thirds vote.”

While that is the law, Wolf’s General Counsel, Gregory Schwab, said Wednesday it is their belief that the passed resolution won’t even make it to Wolf’s desk, and instead only a copy of the resolution will be delivered to the Secretary of State, Kathy Boockvar.

The Senate lawsuit, brought because members want struggling businesses statewide to reopen, and to also set precedence. Senate GOP spokeswoman, Jennifer Kocher, said in a statement:

“The Governor was given the ability to declare an emergency under Title 35 and so you look to that same statute, which says he shall issue an order terminating once resolutions are passed. Under the statute, he has no discretion in this matter. Further, the Courts have stated previously in other cases that the Constitutional provision being quoted does not apply to all resolutions – and it is our position that the concurrent resolution to end the emergency declarations does not have to follow that provision.

Even if many of the restrictions are over, the green phase continues to limit certain kinds of businesses and there is no timeline or standard for when those restrictions will be lifted. Additionally, this situation or one like it could happen again, and we need to resolve this question now so that we can avoid these same disagreements.”

Jennifer Kocher, Senate GOP spokeswoman

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