On December 10, 2021, the Pennsylvania Supreme Court unanimously affirmed,[1] on expedited direct appeal, a state trial court opinion[2] nullifying the state Department of Health’s mask mandate for all public schools. The Supreme Court agreed with the en banc trial court’s ruling that the state Department of Health lacked authority to require masks in the Pennsylvania public schools.  The opinion, in which Justices Max Baer, Debra Todd, Christine Donohue, Kevin Dougherty, and Sallie Updyke Mundy joined, was written by Justice David Wecht; Justice Thomas Saylor did not participate. As the decision itself acknowledges, this case is noteworthy as it contradicts the Court’s earlier rulings deferring to executive and administrative power to issue Covid mandates even when extended beyond statutory bounds and can be renewed in perpetuity.[3]  Pennsylvanians passed two constitutional amendments in May of 2021 which limited agency power to that conferred by the legislature, and further curtailed the governor’s power to issue binding emergency proclamations to 21 days[4]—any order to extend emergency powers beyond that time limit must be approved by the General Assembly.

Background

Pennsylvania’s Disaster Proclamations and Orders date back to early March 2020. Governor Tom Wolf, relying on a state statute,[5] authorized then-Secretary of Health Rachel Levine to suspend or waive any law or regulation of the Department of Health “for such length of time as may be necessary.” Shutdown orders suspending in-person dining at restaurants and bars, in-person gatherings, and business closures ensued. Those orders were challenged in court but were upheld by the Pennsylvania Supreme Court on April 13, 2020.[6] On April 15, 2020, an order[7] mandating masks in businesses was issued, followed by a July 1, 2020 order[8] requiring universal face coverings. Those executive orders were challenged in court and the Pennsylvania Supreme Court upheld[9] the Governor’s authority to issue binding emergency orders renewable for periods of ninety days. Those orders were renewed by Governor Wolf in June, August, and November of 2020 and on February 19, 2021.[10]

In a primary on May 18, 2021, Pennsylvanians ratified two proposed state constitutional amendments, the first empowering the General Assembly to extend or terminate a gubernatorial emergency order by a simple majority vote without need for presentment to the Governor.[11] The second constitutional amendment added a new section to the Constitution which limits the duration of any governor’s emergency order to 21 days, absent a concurrent extension by resolution of the General Assembly.[12] Despite this constitutional amendment, Governor Wolf tried to extend his orders on May 20, 2021. The General Assembly terminated his extension on June 10, 2021, pursuant to the new constitutional amendment and Governor Wolf did not issue any further extensions.[13]  As the Court itself notes, the constitutional amendments “abrogat[ed] our decision in Scarnati.”[14]

In anticipation of the reopening of schools, on August 31, 2021, acting Secretary of Health Alison Beam, Governor Wolf’s former Deputy Chief of Staff, issued the school mask mandate, “regardless of vaccination status.”[15]  Certain limited exceptions were allowed based on health conditions, workplace safety, lipreading, and other situations. This lawsuit followed. State senator and president pro tempore Jake Corman sued the acting Secretary of Health challenging the Secretary’s orders as beyond the powers of the Department of Health, as violations of the state Statutory Construction Act, Regulatory Rules Act, Commonwealth Documents Law, Commonwealth Attorneys Act and making a state constitutional challenge under the non-delegation doctrine.[16] 

The Commonwealth Court, by a vote of 4-1, granted Sen. Corman’s petition, and denied the Secretary of Health’s application for summary relief.[17]  Because there was no emergency declaration in place when the Secretary issued the school mask mandate, and because she was required to follow the Regulatory Review Act and related statutes’ procedures, which she did not, the en banc Commonwealth Court concluded that her Order was void ab initio.[18] Judge Wojcik’s dissent viewed the mandate as “a valid interpretive rule” within the Secretary’s authority that did not require formal promulgation, afforded “great deference” to the Secretary’s interpretation which could only be disturbed for “fraud, bad faith, abuse of discretion or clearly arbitrary action.[19]

The Secretary filed an immediate appeal, and the Supreme Court granted expedited review.[20]  Two questions were presented by the Secretary to the Pennsylvania Supreme Court:

  1. Did the General Assembly empower the Department of Health to issue an order requiring masking in school buildings, as the most efficient and practical means to suppress the transmission of COVID-19 among unvaccinated school children, without having to engage in the lengthy process of promulgating a new regulation?
  2. Did the General Assembly violate the Non-Delegation Doctrine in granting the Department of Health authority and discretion to quickly suppress novel diseases afflicting the Commonwealth?[21]

Summary of Decision

The court’s unanimous decision begins with a short history of the origins of the Pennsylvania Department of Health beginning with colonial and then state responses to smallpox, yellow fever, tuberculosis. cholera, typhus, two influenza pandemics (the first in 1889-90 and the second in 1918-19), and polio, followed by and interspersed with an account of the origins of the Pennsylvania Department of Health in 1905 and the amendment of its powers in 1955 by the Disease Prevention and Control Law.[22]

Because Pennsylvania’s laws unambiguously require the Department of Health to act by formal rule or regulation, and none of the mask mandates were lawfully promulgated either as law or as rules, the Court found the Department of Health lacked authority to issue the school mask mandate.[23]  The Department’s broad authority “[t]o protect the health of the people of [Pennsylvania], and to determine and employ the most efficient and practical means for the presentation and suppression of disease … does not permit the Department or the Secretary of Health to act by whim or fiat in all matters concerning disease.”[24]  “Accordingly we hold that the disease control measures available to the Department pursuant to its non-emergency powers are limited to those adopted by formal rule or regulation,”[25]

The new mask mandate, unlike those of 2020, was issued “absent a gubernatorial disaster emergency declaration suspending the framework of laws governing agency rulemaking in Pennsylvania.”[26] The decision concludes that the Department of Health’s mask mandate circumvented its Regulatory Review Act, the Commonwealth Documents Law, and the Commonwealth Attorneys Act and was void ab initio.[27] The Court grappled at length with but ultimately rejected the Department of Health’s principal argument that this was a “modified quarantine,” reasoning that the mask mandate lacked both a contact nexus and a durational limit and thus “simply is not, by definition, a ‘modified quarantine.’”[28] The decision also rejected the Department of Health’s “’any other disease control measure’ catch-all” arguments advanced to support the government’s claim that the mask mandate fell within its existing powers.[29] Because the Court determined these statutes were unambiguous, neither Chevron nor Auer or any other form of deference was appropriate.[30] Finally, because the decision was determined by clear statutory construction, neither the en banc trial court opinion under review, nor the Court decision, reached the constitutional question of whether the mandate violated the non-delegation doctrine and separation of powers.



[1]Corman v. Acting Sec’y of the Pa. Dep’t of Health, 294 M.D. 2021, __ A. 3d __, 2021 WL 5227124 (Pa. Cmwlth. Nov. 10, 2021 (en banc).

[2]Corman v. Acting Sec’y of the Pa. Dep’t of Health, 83 MAP 2021, __A.3d___, 2021 WL 5860589 (Pa. Dec. 10, 2021)

[3] Friends of Danny DeVito v. Wolf, 227 A. 3d 872 (Pa. 2020); Wolf v. Scarnati, 233 A.3d 670 (Pa. 2020).

[4] Art. IV, Sect 20 (c) “A disaster emergency declaration under subsection (a) [of this amendment] shall be in effect for no more than twenty-one (21) days, unless otherwise extended in whole or part by concurrent resolution of the General Assembly. Pa. Const. art. IV § 20.

[5]Emergency Management Services Code, Section 7301(c).

[6]Friends of Danny DeVito v. Wolf, 227 A. 3d 872 (Pa. 2020).

[7]See Order of the Secretary of the Pa. Dep’t of Health Directing Public Health Safety Measures for Businesses Permitted to Maintain In-Person Operations, 4/15/2020, available at https://www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOHworker-safety-order.pdf

[8]See Order of the Secretary of the Pa. Dep’t of Health Requiring Universal Face Coverings, 7/1/2020, available at https://www.governor.pa.gov/wp-content/uploads/ 2020/07/20200701-SOH-Universal-Face-Coverings-Order.pdf; see also Updated Order of the Secretary of Health Requiring Universal Face Coverings, 11/17/2020, available at https://www.health.pa.gov/topics/Documents/Diseases%20and%20Conditions/Updated %20Order%20of%20the%20Secretary%20Requiring%20Universal%20Face%20Coveri ngs.pdf.

[9]Wolf v. Scarnati, 233 A.3d 679 (Pa. 2020).

[10] Corman v. Pa., slip op. at p. 5.

[11] Pa. Const. art. III, § 9 now reads: “Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the questions of adjournment or termination or extension of a disaster emergency declaration as declared by an executive order or proclamation, or portion of a disaster emergency declaration as declared by an executive order or proclamation, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.”

[12] Pa. Const. art. IV, § 20 now reads:

(a) A disaster emergency declaration may be declared by executive order or proclamation of the Governor upon finding that a disaster has occurred or that the occurrence or threat of a disaster is imminent that threatens the health, safety or welfare of this Commonwealth.

 (b) Each disaster emergency declaration issued by the Governor under subsection (a) shall indicate the nature, each area threatened and the conditions of the disaster, including whether the disaster is a natural disaster, military emergency, public health emergency, technological disaster, or other general emergency, as defined by statute. The General Assembly shall, by statute, provide for the manner in which each type of disaster enumerated under this subsection shall be managed.

 (c) A disaster emergency declaration under subsection (a) shall be in effect for no more than twenty-one (21) days, unless otherwise extended in whole or part by concurrent resolution of the General Assembly.

 (d) Upon the expiration of a disaster emergency declaration under subsection (a), the Governor may not issue a new disaster emergency declaration based upon the same or substantially similar facts and circumstances without the passage of a concurrent resolution of the General Assembly expressly approving the new disaster emergency declaration.

[13] Corman v. Pa., slip op. at p. 7.

[14] Corman v. Pa., slip op. at pp. 5-6.

[15] Corman v. Pa., slip op. at p. 7.

[16] Corman v. Pa., slip op. at pp. 9-11.

[17] Corman v. Pa., slip op. at pp. 10-11.

[18] Corman v. Pa., slip op. at pp. 11-19. Because the Mask Mandate was invalidated on statutory grounds, the lower court decision did not reach the constitutional non-delegation claim. Id. p. 19, n. 25.

[19] Corman v. Pa., slip op. at pp. 19-21.

[20] Corman v. Pa., slip op. at p. 21.

[21] Id.

[22] Corman v. Pa., slip op. at pp. 30-38.

[23] Corman v. Pa., slip op. at pp. 38, 56-57.

[24] Corman v. Pa., slip op. at p. 39.

[25] Id.

[26] Corman v. Pa., slip op. at p. 56.

[27] Corman v. Pa., slip op. at pp. 56-57.

[28] Corman v. Pa., slip op. at pp. 25-26, 41-43, 45-50.

[29] Corman v. Pa., slip op. at pp. 50-54

[30] Corman v. Pa., slip op. at pp. 54-55.

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