Republicans in the Pennsylvania House are moving forward with legislation to end the disaster emergency declaration Gov. Tom Wolf issued on March 6 in response to the spread of the coronavirus.
Democratic and Republican legislators disagree about what options the governor would have if such a resolution reached his desk.
State Rep. Russ Diamond (R-Lebanon) said it’s an “open question” whether the governor would have power to veto it.
Diamond repeatedly declined to elaborate or offer specifics about the legal argument for why it’s an open question.
“A lot of people with a lot of experience around the legislature and around our constitution have — are looking into that question and it remains an open question,” he said.
Mike Straub, a spokesman for the House Republican Caucus, also suggested there was ambiguity on the veto issue.
“We are still working to determine what options are available to us, and what options are available to the governor in terms of what response he can make to a concurrent resolution,” Straub said in an email.
For his part, Wolf said he has the power to veto such a resolution. “I do have the power to disapprove, and I intend to,” he said Thursday afternoon during a call with the media.
A spokesman for the House Democratic Caucus, Bill Patton, agreed that Wolf can veto concurrent resolutions that have the force of law. Thus, Republicans would need a two-thirds vote in both chambers to override the veto and end the disaster declaration.
The governor has used his sweeping disaster emergency powers to order the closing of businesses across the state, and 18 counties are expected to remain in the “red phase” of his reopening plan — meaning people can only leave their homes for essential reasons and many retailers must remain closed — through at least this weekend.
A resolution to end Wolf’s disaster emergency declaration passed out of the House Veterans Affairs and Emergency Preparedness Committee on Thursday. The roll call vote wasn’t posted online early Thursday afternoon; Republicans hold a 15-10 majority on the panel.
The state’s disaster emergency law gives the governor the power to declare a disaster emergency “upon finding that a disaster has occurred or that the occurrence or the threat of a disaster is imminent.” Those declarations can last up to 90 days, unless the governor renews them for longer.
The legislature also has the power to end them.
“The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time,” state law says. “Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency.”
That disaster declaration law doesn’t mention anything about the governor’s veto power.
But the state constitution does. It says the governor has veto power over every “order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment. …”
Wolf’s press secretary, Lyndsay Kensinger, pointed to that section of the state constitution, noting, “the governor has the power to approve or disapprove a concurrent resolution.”
Kyle Kopko, associate professor of political science at Elizabethtown College in Lancaster County, said it would likely take the courts to resolve the veto question.
The veto question is a big one — the difference between Republicans being able to end the emergency declaration with simple majorities in both chambers versus needing two-thirds support to override.
“Even if they knew that this wouldn’t survive a court challenge, it would still be a pretty powerful symbolic gesture,” Kopko said.
The Republican-controlled legislature has never directly overridden a veto from Wolf.
And on Wednesday, House Republicans failed to override Wolf’s veto of a bill aimed at reopening barbershops, lawn and garden centers, car dealerships and manufacturers, and certain other businesses. Six Democrats voted in favor of that veto override motion.
During Thursday’s hearing on the resolution to end the emergency, lawmakers didn’t focus on the veto issue.
But state Rep. Frank Burns (D-Cambria) said the governor would have other options.
“What is stopping the governor from issuing a new emergency declaration? And then we’re right back here again doing this same thing over again” Burns asked.
Diamond said Wolf would have the power to do so.
“That would certainly be within his right,” Diamond said. “But I wouldn’t want to be a governor who is flying in the face of the people’s direct representatives, who by majority put a resolution on his desk to stop his actions.”
Burns said he is concerned about the state potentially losing access to federal funding by terminating the disaster emergency declaration. Diamond disputed that the state would lose access to federal money.
Burns is also concerned that coronavirus infections could surge again if businesses aren’t required to follow guidelines from the U.S. Centers for Disease Control and Prevention.
“You could have stadiums full of people in Philadelphia,” Burns said.
Diamond said that type of gathering would be a possibility, but he said Wolf could work with the legislature to create safety requirements. And he noted that people have been warned repeatedly about the risks posed by the coronavirus.
“Would you attend a stadium event that’s crowded with 70,000 people for a sporting event ?” Diamond said. “I don’t think there’s anybody in Pennsylvania who would do that right now.”
PA Post is a digital-first, citizen-focused news organization that connects Pennsylvanians with accountability and deep-dive reporting. For more stories from PA Post, visit PaPost.org.