Constitutional law expert: Federal ruling against Wolf administration more symbolic than practical

This story originally appeared on WITF.

___

A federal judge in the Western District of Pennsylvania ruled Monday that Gov. Tom Wolf’s coronavirus-related shutdown orders and limits on public gatherings are unconstitutional. But some legal experts question what effect, if any, the decision will have in the ongoing struggle between the Wolf administration and those who want the state to reopen completely.

In an attempt to slow viral spread, Gov. Wolf and state Health Secretary Dr. Rachel Levine imposed limits on how many people can gather at one time and ordered businesses to close or restrict their operations.

But a few Butler County leaders and business owners argue that violated their free speech and equal protections rights. Several are officeholders, including state Rep. Daryl Metcalfe (R, Butler County) and Republican Congressman Mike Kelly.

In a 66-page ruling, Judge William Stickman IV agreed. He called the emergency efforts of state leaders “laudable” — but says they can’t “supersede” individual rights, even in an emergency. Stickman also pointed to “shockingly arbitrary” means by which the Wolf administration determined essential and non-essential businesses, some of which have been “financially devastated” because of closure orders.

President Donald Trump appointed Stickman to his post last May. The Senate confirmed the nomination largely along party lines.

But most of the restrictions and orders the District Court judge struck down have since been rolled back. Pennsylvania’s stay-at-home order effectively ended in early June and state leaders have allowed religious and political gatherings to take place without limiting the number of people who can attend.

Duquesne University School of Law Professor Bruce Ledewitz says that speaks to the nature of Stickman’s ruling.

“Exceptions have been made for almost every gathering that I know of that’s protected by the First Amendment,” he said. “They’ve made so many exceptions that you have to wonder why this was even necessary. It’s largely a symbolic blow against overreaching government.”

Lawyer Kevin Levy, who also analyzed the ruling, made a similar observation, tweeting the case appeared to be focused on “ideological grounds:”

KEY LANGUAGE: “There is no question…that courts may provide state and local officials greater deference when making time-sensitive decisions in the maelstrom of an emergency. But that deference cannot go on forever. It is no longer March.” 11/? #Pennsylvania #COVID_19

— Kevin M. Levy (@LegalLevy) September 14, 2020

However, movie theaters are among the businesses that remain closed, while restaurants and bars can only seat 25 percent of their indoor capacity, unless they apply for a newly-available certification allowing them to seat 50 percent. A 25 person indoor gathering and 250 person outdoor gathering limit still apply.

Judge Stickman’s ruling did not address restaurants, since as he noted, he was not asked to do so. Nor does it address mask-wearing or social distancing mandates handed down by public health experts.

Wolf administration spokesperson Lyndsay Kensinger asserted Stickman’s decision doesn’t affect any mandate that’s in place right now. Gov. Wolf released an updated coronavirus mitigation order in July and renewed a 90-day disaster declaration at the start of September.

“This ruling does not impact any of the other mitigation orders currently in place including, but not limited to the targeted mitigation orders announced in July, mandatory telework, mandatory mask order, worker safety order, and the building safety order,” Kensinger said in a statement.

But even so, Ledewitz said, the Wolf administration may no longer be ordering Pennsylvanians to stay home or keeping certain businesses under lockdown. But that doesn’t mean it won’t in the future.

“None of this is moot, because it could always be reimposed, and voluntary cessation does not moot a case.”

If that has to happen later this fall or winter, Ledewitz said the “abstract” nature of the ruling gives the Wolf administration enough room to circumvent it.

“If they have to reimpose some of these orders, they will reimpose them arguing that they’re not exactly the same as the orders were before, and therefore they were not at issue in the opinion,” he said.

The Wolf administration said Monday it will seek a stay of the decision from a higher court and file an appeal.