Governor Wolf cannot close private businesses

Hello everyone!  This is going to be lengthy, but please read to the end.

Governor Wolf has no authority to label private businesses as essential or non-essential.  He also cannot mandate closures of private businesses in the Commonwealth.  He does have jurisdiction over businesses that fall under state food service regulations or licensing, in particular restaurants, bars and liquor stores.

He cited the Emergency Management Services Code, 35 Pa. C.S. 7101, et. sec. – “Emergency Code” as the basis for his power.  Definition of disaster in section 7102:

Disaster.  A man-made disaster, natural disaster or war-caused disaster.

Man-made:  Any industrial, nuclear or transportation accident, explosion, power failure, natural resource shortage or other condition, except enemy action, resulting from man-made causes, such as oil spills and other injurious environmental contamination which threatens or causes substantial damage to property, human suffering, hardship or loss of life.

Natural disaster:  Any hurricane, tornado, storm, flood, high water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, human suffering, hardship or loss of life.

War-caused:  Any condition following an attack upon the United States resulting in substantial damage to property or injury to persons in the United States caused by the use of bombs, missiles, shellfire, nuclear, biological or chemical means, or other weapons or overt paramilitary actions, or other conditions such as sabotage.

What is glaringly absent from ALL THOSE DEFINITIONS in the word “DISEASE” or “VIRUS” and, as a result, the Emergency Code does not apply to COVID-19.  One might think that this is any oversight, but the General Assembly has explicitly enacted a law regarding disease – the Disease Prevention and Control Law, 35. P.S. 521.9 – and that law does not provide Governor Wolf with the power to close private businesses, regardless of whether essential or non-essential.  Oh, by the way, none of the laws talk about essential or non-essential businesses.

Perhaps most importantly is Article 1, Section 12 of the Pennsylvania Constitution with provides:

12.  Power of suspending laws.  No power of suspending laws shall be exercised unless by the Legislature of by its authority.

This was published by Joshua Prince, Esq. two days ago….