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Liberty v. Tyranny: Pennsylvania Edition, 2020
First few puzzle pieces fitted into place.
I’ve been digging deeper into the burning questions of “How the hell did this happen?” and “How can those of us who care, make it stop and prevent it from happening again?”
I’m gradually getting a handle on which Pennsylvania leaders have tried to protect individual human rights this past year — the ultimate decentralization of power — and which have tried to protect centralized authoritarianism and their own fiefdoms.
Several battles are being waged across legislative, judicial and executive branch battlegrounds.
Authoritarian Democrats have won most of the battles so far, and libertarian-leaning Republicans have been losing, thanks in large part to the machinations of partisan Democrat judges, leaving Governor Tom Wolf and former Health Secretary Rachel Levine’s executive order regime in place.
But the war seems to just be getting started, as more people recover from the shock and begin to piece together what’s been stolen from us, and how and by whom the theft was executed.
1978 Emergency Management Services Code
On March 6, 2020, Governor Wolf and Secretary Levine declared a statewide state of emergency under the 1978 Emergency Management Services Code, 35 Pa.C.S. §§ 7101 et seq., which was adopted by the General Assembly in 1978 in response to floods and the Three Mile Island nuclear incident.
The EMS Code delegated power from the legislature to the Governor, allowing the Governor to make emergency declarations lasting up to 90 days, renewable by gubernatorial order thereafter.
Governor Wolf renewed his original proclamation for another 90 days on June 3, 2020, and it is still in force today following a fourth renewal signed on February 19, 2021.
Under the terms of the 1978 Emergency Management Services Code, the state of emergency can be terminated either by the Governor, or by both houses of the General Assembly adopting concurrent resolutions.
However, when the General Assembly attempted to modify the terms of Governor Wolf’s orders through concurrent legislation, and eventually tried to terminate the emergency declaration through a concurrent resolution, Governor Wolf and Secretary Levine simply ignored the legislation and continued enforcing the executive orders.
The conflict made its way to the Pennsylvania Supreme Court in the Wolf v. Scarnati case, 104 MM 2020, which was decided in Wolf's favor on July 1, 2020.
More detail on that case later in the puzzle-piecing process.
1955 Disease Prevention and Control Law
Governor Wolf and Secretary Levine primarily cited the 1978 EMS Code, and secondarily cited the 1955 Disease Prevention and Control Law, 35 P.S.A. Section 521.1 et seq.
By doing so, they apparently sidestepped requirements of the 1955 disease prevention law that limit the government's power to "isolate" individual "infected persons or animals," and limit its "quarantine" power only to "persons or animals who have been exposed to a communicable disease."
Further, the 1955 law limits the Health Secretary's power to "quarantine" people only for "a period of time equal to the longest usual incubation period of the disease."
By citing the 1978 EMS Code as their primary legal authority, Wolf and Levine managed the disaster not as a human health matter affecting millions of morally-autonomous and individually-subjective humans, but as a geographical contamination matter affecting objectified meat-sacks.
They basically created a statewide disaster zone that included every individual person's physical body, every private home and businesses, and every public facility, as if all were objects presumptively under state control and contaminated by a virus, in the same way an area of land or water might be presumptively contaminated by radioactive particles in a nuclear disaster.
These matters, among many others, were raised in federal civil rights cases including Benner v. Wolf, 20-CV-775.
I think the Benner case is on hold pending the outcome of Butler v. Wolf, now under review by the Third Circuit Court of Appeals, docketed at 20-2936. Checking with the Benner lawyers to confirm.
More on the legal arguments in the Benner and Butler civil rights cases later.
Constitutional Amendments on May 18, 2021 Primary Ballots
For two months after the initial emergency order, Pennsylvania legislators attempted to modify or roll back portions of Governor Wolf and Health Secretary Rachel Levine's unilateral stay-at-home and business-closure orders, and successfully passed several measures by simple majority.
In each case, Governor Wolf and Secretary Levine ignored or vetoed the legislation, and the legislators were unable to get super-majorities to override the vetoes.
This sequence of events prompted Senator Kim Ward (R-Westmoreland) to introduce Senate Bill 1166 in May 2020, proposing Constitutional amendments that, if approved by Pennsylvania voters, would firm up the co-equal power of the General Assembly to manage governmental responses to public emergencies and reduce the power of the Governor’s executive branch to act as unilaterally and unendingly as it has during this crisis.
Senator Ward’s original proposal was to amend the Constitution "to limit any emergency disaster proclamation issued by the Governor to 30 days unless approved for a longer duration by the General Assembly," by a majority vote.
In her legislative memo dated May 13, 2020, Ward wrote:
"…the majority of the General Assembly has continually voted to minimize the harmful impacts the Governor’s closure and stay-at-home orders have caused for their constituents while preserving public health and safety, [and] the Governor has repeatedly vetoed the bills and maintained unilateral power over the lives of Pennsylvanians for more than two months now, without any clear end in sight."
To place a proposed Constitutional amendment on the ballot for Pennsylvania voters, each house of the General Assembly must pass the same bill in two consecutive sessions.
During the 2019-2020 session, the Pennsylvania Senate passed a first version of SB-1166 by a 44-6 vote on June 10, 2020.
The House amended the Senate text and approved the revised version by a 115-86 vote on July 14, 2020.
The Senate accepted the House amendments and approved the measure by a 33-17 vote on July 15, 2020.
During the 2021-2022 session, the Senate again approved the measure (numbered Senate Bill 2 for the new session), by a vote of 28-20 on January 26, 2021. The House passed the same bill by 116-86 on February 5, 2021.
I’ll report more later about the arguments for and against made by legislators during debate.
As passed, two emergency management-related questions are to be presented to Pennsylvania voters on the May 18, 2021 primary ballot.
The first ballot question, according to the SB1166/SB2 text, asks whether Pennsylvania voters want to amend Article III, Section 9 of the Pennsylvania Constitution to add "termination or extension of a disaster emergency declaration as declared by an executive order or proclamation," to the short list of "concurrent orders and resolutions" on routine topics like adjournment, that can take effect upon approval by a simple majority, without need for the Governor’s signature and therefore without an option for a Governor’s veto and without need for a supermajority override.
Based on the text of the SB1166/SB2 joint resolution, the second amendment, if adopted by Pennsylvania voters at the polls, would amend Article IV of the Pennsylvania Constitution to add a Section 20:
Section 20. Disaster emergency declaration and management.
(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.
Following adoption by the two houses of the General Assembly during two consecutive legislative sessions, as happened between July 2020 and February 2021, the Governor's office is responsible for drafting the text of the questions to be presented to Pennsylvania voters and published in general circulation newspapers in each county.
In keeping with his now-indisputably-clear hunger to maintain power centralization in the Governor's office, Wolf's staff inserted Newspeak doubleplusungood language into the ballot questions, prompting angry but impotent outcry from legislators who would prefer to see the amendments presented in terms that increase rather than decrease the likelihood that voters will approve it.
Ballot Question 1, as framed by Wolf's staff, reads:
Shall the Pennsylvania Constitution be amended to change existing law and increase the power of the General Assembly to unilaterally terminate or extend a disaster emergency declaration—and the powers of Commonwealth agencies to address the disaster regardless of its severity pursuant to that declaration—through passing a concurrent resolution by simple majority, thereby removing the existing check and balance of presenting a resolution to the Governor for approval or disapproval?
Ballot Question 2 reads:
Shall the Pennsylvania Constitution be amended to change existing law so that: a disaster emergency declaration will expire automatically after 21 days, regardless of the severity of the emergency, unless the General Assembly takes action to extend the disaster emergency; the Governor may not declare a new disaster emergency to respond to the dangers facing the Commonwealth unless the General Assembly passes a concurrent resolution; the General Assembly enacts new laws for disaster management?
I have a dog in this fight.
Not a Republican dog or a Democrat dog. I don’t think politicians have any commitment to principles that transcend their own electoral interests, and with gerrymandering, they don’t need to, because their social status and paychecks are pre-assured for as long as they want them.
If the roles were reversed, most of today’s Republican dogs would be barking about their dire need for centralized power to deal with a novel threat, and most of the Democrat dogs would be barking about their passion for checks and balances.
My dog is the dog that thinks humans-at-liberty are better off than humans-under-tyranny, even with our vulnerability to risks including contagious diseases, and especially in light of our inescapable mortality. I find abhorrent the proposition that anyone other than each individual human self is more qualified than that self to dictate how his or her life should be lived.
I will promote my position through the arguments made by pro-liberty Pennsylvania citizens, attorneys, legislators and judges, and I will also try to present the pro-tyranny arguments made by Governor Wolf, Health Secretary Levine, Attorney General Josh Shapiro, Supreme Court Justice David Wecht and others as accurately as possible.
At the same time, it’s increasingly clear to me that these two groups of people, with such non-overlapping perceptions of reality, can’t co-exist for much longer inside the same national or even state boundaries.
One side (where I stand) thinks that government officials have been telling massive, terrifying lies to the people, exaggerating the threat posed by an otherwise ordinary human respiratory virus, purely to centralize their own power and inflict massive damage on civilian lives, liberties, and livelihoods, and doing it with complete impunity.
The other side thinks the same government officials have been nobly protecting public health and safety from a deadly and unprecedented scourge, implementing sensible sanitary and isolation policies and bravely forging ahead against the evil, selfish forces of individualism.
As a result, while putting the legal and political puzzle together through reading and writing, I’m also thinking about how the divorce between these two utterly incompatible groups might come to pass with as little bloodshed as possible.
More specifically on the Constitutional amendment thread, it seems clear that Tyrant King Tom is not so confident that the majority of voters in Pennsylvania love him and his Branch Covidian cult decrees. If he were confident, he wouldn’t be taking steps to linguistically manipulate the public information and voting process.
It'll be pretty delightful if the People see through the manipulation and vote to make it somewhat more difficult for him and all future governors (of any party or ideology) to feed their appetites for tyrannical power: power they’ve shown themselves eager to seize and abuse.