New Normal Imposed by Wolf Declared Unconstitutional by Federal Court

Tom Shepstone
Shepstone Management Company, Inc.

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The doctrinally inflexible Tom Wolf’s ‘new normal’ for COVID has been ripped to shreds by Federal District Judge William A. Stickman!

I received some good-naturing ribbing from a lawyer friend the other day regarding my comparison of Tom Wolf with the ‘doctrinally inflexible’ Russian Tsar Nicholas II. I had noted Wolf was facing “a rejection, by Democrats as well as Republicans, of [his] attempt to shove RGGI down the throats of the legislature and all Pennsylvanians.” My friend suggested I had gone too far in characterizing Wolf as a “a trust-funder personality” akin to the last Tsar. Yesterday, though, I was vindicated as Federal District William Stickman articulated the many ways an unengaged Tom Wolf allowed his health bureaucrats to impose a thoroughly unconstitutional “new normal” on Pennsylvanians, just as he has allowed green special interests to attempt to impose RGGI on us.

new normal

Federal District Judge William S. Stickman

Stickman’s decision, 66 pages in length, gets at much of what has been wrong with Pennsylvania and several other states’ reckless lockdowns. A copy that I’ve highlighted, to make it easier for readers to find the best parts, may be found here. One of the most interesting parts relates to how little Wolf has paid attention. It immediately reminded me of a conversation I had a couple of years ago with a Pennsylvania politician I know, one who also knows Tom Wolf and said the best description of the man is “unengaged.” Perhaps “aloof” is more apt. Regardless, here’s how Judge Stickman describes Wolf’s role in his administration’s COVID debacle (emphasis added and citations deleted):

The Governor’s proclamation of a disaster emergency vested him with extraordinary authority to take expansive action by executive order. Within the Governor’s office, a “group” “was formed to work on issues related to the pandemic” both on the “economic development side and pertaining to the business closures” and “on the health side, teams were formed to work to understand the progress of the pandemic.” It was an “interdisciplinary team” with “individuals from the [G]overnor’s office and agencies being pulled together for specific tasks,” including Secretary Levine. The “group” never reduced its purpose to writing, although “its stated purpose was to develop mechanisms to respond to that emerging threat [i.e. a pandemic] in a very quick period of time.” The names of its members remain unknown.

Part of the “group” consisted of a “reopening team” and a “policy team.” None of their “hundreds, if not thousands” of meetings were open to the public, no meeting minutes were kept, and “formality was not the first thing on [their] minds.” The “reopening team” was “working to develop the various guidance that was necessary to respond to the pandemic,” and it “published that on the Commonwealth’s website and put out press releases.” It also formulated the stay-at-home order. The “policy team” was tasked with creating the distinctions between “life-sustaining” and “non-life-sustaining” businesses as well as preparing responses for the public on frequently asked questions. Its members consisted solely of employees from the Governor’s policy and planning office, none of whom possess a medical background or are experts in infection control.

The Governor never attended meetings of the various teams, but he “participated in regular calls and updates with members of his administration” and he “was briefed and consulted on key matters.” Ultimately, without ever conducting a formal vote, the teams, by consensus when “there [was] a favorite approach everyone agree[d] on,” put together the scope of an order and submitted it to the Governor through his Chief of Staff for approval.

Tom Wolf, in other words, simply did whatever an unnamed and wholly unaccountable group of bureaucrats informally told him. He was not engaged and was clearly aloof as he imposed a “new normal” on all Pennsylvanians, which is precisely what he’s also trying to do with RGGI, although, in the latter case, it’s mostly unnamed, unaccountable green special interests doing the planning. Wolf simply considers himself above it all and won’t condescend to consider Main Street interests. Doctrinally inflexible leaders never learn; they gotta dictate after all.

Judge Stickman wasn’t big on the dictates either:

The extraordinary emergency measures taken by Defendants in this case were promulgated beginning in March-six months ago. What were initially billed as temporary measures necessary to “flatten the curve” and protect hospital capacity have become open-ended and ongoing restrictions aimed at a very different end — stopping the spread of an infectious disease and preventing new cases from arising-which requires ongoing and open-ended efforts. Further, while the harshest measures have been “suspended,” Defendants admit that they remain in-place and can be reinstated sua sponte as and when Defendants see fit. In other words, while not currently being enforced, Pennsylvania citizens remain subject to the re-imposition of the most severe provisions at any time. Further, testimony and evidence presented by Defendants does not establish any specified exit gate or end date to the emergency interventions. Rather, the record shows that Defendants view the presence of disease mitigation restrictions upon the citizens of Pennsylvania as a “new normal” and they have no actual plan to return to a state where all restrictions are lifted. It bears repeating; after six months, there is no plan to return to a situation where there are no restrictions imposed upon the people of the Commonwealth. Sam Robinson, a Deputy Chief of Staff to the Governor, testified as much when asked if there was a phase of reopening beyond the “green phase” where there would be no restrictions:

Q. You can’t move from green to no restrictions whatsoever? There’s no way to do that under this system, right?

A. So there are a number of options for, you know, what post green potentially could look like, and that could just be entirely removal of all restrictions or replacement with other restrictions, maybe not a color-coordinated system. There are certainly other options on the July 15th order that we’ve referenced from last week, certainly an approach that was a change that was not strictly speaking within the red/yellow/green framework as originally contemplated. And we are doing our best to respond to the pandemic nimbly and not being locked into a specific approach but to target areas where we see spread and things that we can do to balance the need to reopen the economy and continue moving Pennsylvania back towards the new normal that the governors and others have talked about while at the same time taking targeted mitigation steps to prevent the spread of the virus, which is what’s embodied in that July 15th order.

Q. What is the new normal? What does the governor mean by the new normal? What’s that mean?

A. Well, we’re still evolving into it, but obviously it’s more consciousness about steps to prevent the spread of COVID and ways that Pennsylvanians are having to be more conscious of those mitigation efforts and take steps to be responsible individually to protect fellow Pennsylvanians.

Even when the existing restrictions are replaced, it appears to be the intent of Defendants to impose and/or keep in place some ongoing restrictions. Mr. Robinson testified that “early on it was sort of just assumed that beyond green was no restrictions, and that may be ultimately where we get.” However, the position is now less clear in that Mr. Robinson hedged on whether any future period of no restrictions can be foreseen (“at the point that we are ready to remove all of the restrictions, we will have a discussion about how specifically to do that. It may be that the whole-you know, that whole system is replaced with just very limited restrictions.”) [Emphasis in the case of the last sentence added by the court.]

And, there’s more:

…absent an extraordinary veto-proof vote of the General Assembly, there is no limit on the number of times the Governor may renew the declaration and vest himself with extraordinary unilateral powers…

Pennsylvania has dense urban areas, commuter communities servicing the New York metropolitan area, small towns and vast expanses of rural communities. The virus’s prevalence varies greatly over the vast diversity of the Commonwealth-as do the resources of the various regions to combat a population proportionate outbreak. Despite this diversity, Defendants’ orders take a one-size fits all approach. The same limits apply in counties with a history of hundreds or thousands of cases as those with only a handful…

…an examination of the history of mitigation efforts in response to the Spanish Flu-by far the deadliest pandemic in American history-reveals that nothing remotely approximating lockdowns were imposed…

Not only are lockdowns like the one imposed by Defendants’ stay-at-home orders unknown in response to any previous pandemic or epidemic, they are not as much as mentioned in recent guidance offered by the Centers for Disease Control and Prevention (“CDC”)…

The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective…

Thus, Defendants’ orders have created a situation where the default position is lockdown unless suspended at their will. When in place, the stay-at-home order requires a default of confinement at home, unless the citizen is out for a purpose approved by Defendants’ orders. Moreover, this situation applied for an indefinite period of time. This broad restructuring of the default concept of liberty of movement in a free society eschews any claim to narrow tailoring.

In addition, the lack of narrow tailoring is highlighted by the fact that broad, open-ended population lockdowns have never been used to combat any other disease. In other words, in response to every prior epidemic and pandemic ( even more serious pandemics, such as the Spanish Flu) states and local governments have been able to employ other tools that did not involve locking down their citizens…

Never before has the government exercised such vast and immediate power over every business, business owner, and employee in the Commonwealth. Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion…

The record shows that the Governor’s advisory team, which designated the Business Plaintiffs and countless other businesses throughout the Commonwealth as “non-life-sustaining” and, thereby, closing them, did so with no set policy as to the designation and, indeed, without ever formulating a set definition for “life-sustaining” and, conversely “non-life-sustaining.” The terms “life-sustaining” and “non-life-sustaining” relative to businesses are not defined in any Pennsylvania statute or regulation…

The record demonstrates that the policy team’s unilateral determination as to which classes of businesses would be classified as “life-sustaining” was never formalized and the team never settled on a specific definition of “life-sustaining”…

The Court recognizes that Defendants were facing a pressing situation to formulate a plant o address the nascent COVID-19 pandemic when they took the unprecedented step of sua sponte determining which businesses were “life-sustaining” and which were “non lifesustaining.” But in making that choice, they were not merely coming up with a draft of some theoretical white paper, but rather, determining who could work and who could not, who would earn a paycheck and who would be unemployed-and for some-which businesses would live, and which would die. This was truly unprecedented.

An economy is not a machine that can be shut down and restarted at will by government. It is an organic system made up of free people each pursuing their dreams. The ability to support oneself is essential to free people in a free economy…

The Court closes this Opinion as it began, by recognizing that Defendants’ actions at issue here were undertaken with the good intention of addressing a public health emergency. But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms-in place when times are good but able to be cast aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional.

And, of course, the doctrinally inflexible trust-funder governor, Tom Wolf, is appealing. As a good friend says, “having tasted absolute power, Gov. Wolf just can’t let go.” That’s it in a nutshell and that’s why he’s not going to listen to reason on RGGI either. Doctrinally inflexible leaders gotta dictate “new normals.”

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