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The state Supreme Court already shot down a version of the suit — ruling, essentially, that Wolf was within his statutory rights.
But Marc Scaringi, the Harrisburg lawyer and conservative radio host who is arguing the case, said he remains “cautiously optimistic” about his odds in federal court, because the justices didn’t immediately dismiss the suit out of hand.
“We understand how rare it is for the United States Supreme Court to get involved in a situation like this, particularly in the request to stay a gubernatorial executive order,” he said.
Scaringi believes his is the first such lawsuit to be filed with the high court, but acknowledged that Wolf’s business closure orders are similar to the ones that nearly every governor has handed down in response to the pandemic. The court is looking for more information before deciding whether to take the case.
“Governors across the country have police powers, they always have,” he said of the extraordinary measures that governors can take in emergencies. “But what we say is, [Wolf] doesn’t have this particular police power. That the en masse shutting down of businesses has never been utilized before.”
There are five plaintiffs in Scaringi’s case: a golf course, a real estate agent, a timber company, a laundromat owner and a GOP state House candidate.
Scaringi is making several intermingled constitutional arguments on their behalf. For one, he claims Wolf is depriving people of their property without due process or compensation. He also argues that letting businesses apply for waivers to keep operating was an insufficient and opaque method for providing that due process. He also said Wolf’s waiver decisions have been “capricious” — which he says also violates the right to equal protection.
In the case of the state House candidate, Danny DeVito, Scaringi argues that necessary free speech and assembly rights are being violated because DeVito can no longer campaign as usual.
A spokeswoman for the Wolf administration said she can’t comment on ongoing litigation.
In the case before the state Supreme Court, the administration argued that Wolf was acting within his broad emergency powers, and that he had taken rapid measures that were commensurate with the pandemic the commonwealth is facing. In their majority opinion, the state court justices also noted that any impacts the business closure orders might have on owners’ rights are, by design, temporary.
Some state justices didn’t completely agree that Wolf was in the right.
In a partial dissenting opinion, Republican Chief Justice Thomas Saylor said he has lingering concerns about the “alleged inconsistency and arbitrariness” of the Wolf Administration’s waiver process for businesses to contest closure orders.
Plus, he said, even though closure orders might be temporary, “this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast.”
Two other justices cosigned Saylor’s dissent.
However, he concluded, essentially, that now is not the time to try to overturn Wolf’s order.
“In light of the ongoing public health crisis,” he wrote, “I believe there is much to be said for treating the executive branch’s actions as presumptively valid for now.”