SCOTUS Declines to Take On PA Businesses’ Challenge to Gov. Wolf’s Shutdown Order

May 6, 2020

Gaetano Piccirilli and Travis Dunkelberger

SCOTUS Declines to Take On PA Businesses’ Challenge to Gov. Wolf’s Shutdown Order

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A group of Pennsylvania businesses lost their bid to have the Supreme Court of the United States (SCOTUS) address the validity of Governor Wolf’s March 19 executive order compelling all non “life-sustaining” businesses to close as part of the State’s efforts to prevent the spread of COVID-19.

The appeal, which argued for the high court to invalidate Governor Wolf’s shutdown order on constitutionality grounds, was denied by the Supreme Court on March 6 with no additional commentary or dissents noted. As a result, and with Governor Wolf recently announcing plans to gradually remove business restrictions in certain parts of the state, the Supreme Court’s decision likely marks an end to the businesses’ months-long challenge to the Governor’s shutdown order.

The Pennsylvania businesses’ efforts to invalidate the shutdown order began on March 24, 2020, when several businesses and other entities in the state filed an emergency application to the Pennsylvania Supreme Court in which they claimed Governor Wolf’s executive order was unconstitutional and went beyond the scope of the Governor’s authority. On April 13, 2020, the Pennsylvania Supreme Court denied the challenge in a split decision based, in part, on the powers provided to governors during a state of emergency and the ability for businesses to seek waivers from the shutdown order. The businesses then took their challenge to the Nation’s highest court, with some initial optimism after Justice Samuel Alito asked Governor Wolf to respond to the petition. SCOTUS ultimately chose not to hear the case, however, meaning Governor Wolf’s shutdown order will remain in effect until COVID-19 efforts are gradually phased-out over the coming months.

The timing of the Supreme Court’s decision is noteworthy, as the first wave of Pennsylvania counties are set to remove certain restrictions and begin the process of reopening businesses and the local economy. Nonetheless, while SCOTUS chose to pass on this particular challenge, similar other lawsuits have been filed in other states across the country, making it likely there will be other attempts to invalidate governor shutdown orders until restrictions based on COVID-19 are fully removed.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Co-author Gaetano P. Piccirilli, partner and co-author Travis Dunkelberger, associate, are members of the Litigation Department at Klehr Harrison.