Thread by @LegalLevy

A federal judge has struck down some portions of @GovernorTomWolf's executive orders related to #COVID_19.

I'm going to try to analyze in a stream of consciousness here.

https://twitter.com/StephenJ_Caruso/status/1305543878615928833

The case was County of Butler v. Thomas W. Wolf, Civ. Action No. 2:20-cv-677. The opinion is available here: princelaw.files.wordpress.com/2020/09/157175… (2/?)

Plaintiffs challenged two groupings of executive actions: (1) indoor and outdoor gathering restrictions and (2) orders closing "non-life-sustaining" businesses and ordering Pennsylvanians to stay home. (3/?)

And no, you're not crazy - even though the stay-at-home orders all expired months ago, the court still examined them and found issues under those orders to be "ripe." More on that later. 4/?

Judge notes balancing act: "In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions...may persist long after immediate danger has passed." 5/?

At issue are provisions in the First and Fourteenth Amendments to the US Constitution related to freedom of assembly and rights to due process and equal protection. 6/?

VERY IMPORTANTLY: The Court applied "Intermediate Scrutiny" to these orders. Most laws are reviewed for rational basis, i.e., whether they are "rationally related" to a "legitimate" governmental interest. If they are, it's constitutional. 7/?

Intermediate scrutiny means that the government needs to put forth more to justify its actions. The court explains more on Page 11-21. 8/?

As I predicted over the last few months, the longer these restrictions last, the less deference courts will give to the governor. The Judge here seems to be skeptical to Governor Wolf's claims for extraordinary powers since these orders are part of a "new normal." 9/?

"Even when the existing restrictions are replaced, it appears to be the intent of [@GovernorTomWolf and @SecretaryLevine[ to impose and/or keep in place some ongoing restrictions." pg. 18 10/?

KEY LANGUAGE: "There is no question...that courts may provide state and local officials greater deference when making time-sensitive decisions in the maelstrom of an emergency. But that deference cannot go on forever. It is no longer March." 11/? #Pennsylvania #COVID_19

Without question this case is focused on some ideological grounds. "There is no question that our founders abhorred the concept of one-person rule. They decried government by fiat." Similar lines repeated by PA Legislative Republican leaders.

FIRST HOLDING: The Court holds that the July 15 ("Targeted Mitigation") Order from @GovernorTomWolf violates the first amendment's freedoms of assembly and speech. The court applied intermediate scrutiny to the order because it was "content neutral." 13/?

The court struck down the gathering limits because they were not narrowly tailored. They did not apply to stores which gathering limit was based on its maximum occupancy. "Indeed, hundreds of people may congregate in stores, malls, large restaurants and other businesses..." 14/?

Additionally, the gathering limits applied to every corner of the Commonwealth, without regard to COVID incidence. (This is only true now, since all counties are in Green Phase. Originally, there were different limits when counties were in Yellow & Red). 15/?

HELD: "The congregate limits in [the Targeted Mitigation] orders are unconstitutional." 16/?

Now onto the stay at home and business closure provisions. 17/?

Interesting point here: the court abstracts the Governor's Stay at Home Orders and finds that the stay-at-home requirements are suspended rather than rescinded. [Editor's note: I think this is incorrect. The stay-at-home orders are EXPIRED. They could be reissued, though] 18/?

The court engages in a lengthy discussion on mootness (since the SAH orders aren't effective today). IMO the court reaches the wrong conclusion: sure, they COULD be reissued, but the Governor was hit hard by executives' testimony (page 38) which (incorrectly) stated the law. 19/?

"The record is unequivocal that those orders [Stay at Home], albeit suspended, remain in place. In other words, all of Plaintiffs and, indeed, all of the citizens of the Commonwealth continue to be subject to stay-at-home orders."

Self-inflicted wound by @GovernorTomWolf. 20/?

Judge hits the Commonwealth on "lockdown" orders, finds them unprecedented and "not as much mentioned in recent guidance offered by the [CDC]." This is true: lockdown orders are not recommended by CDC (but they WERE by the @WhiteHouse's initial phased strategy. 21/?

Judge also hits China: "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...after another imposed draconian...measures" 22/?

The court does NOT look favorably on "Stay at Home" orders because they "strictly limited the right of movement, confining citizens to their homes unless they had a specific permissible reason to leave enumerated in [@GovernorTomWolf's] orders." 23/?

Correction to above scrutiny tweet (number 7): the Court applies STRICT SCRUTINY (this is the highest level of scrutiny under ConLaw) to the Stay at Home Order. However, court engages in analysis of intermediate scrutiny and holds the SAH Order would fail that too. 24/?

2nd HOLDING: "The Court declares, therefore, that the stay-at-home components of Defendants' orders were and are unconstitutional." B/c the gov't hasn't "truly demonstrate[d] that they burden no more liberty than is reasonably necessary to achieve an important gov't end." 25/?

Business closure time. page 49 26/?

Weird fact: #Pennsylvania was unique in classifying businesses as "life-sustaining" as opposed to "essential" or not. As far as I could tell, there was no difference other than verbiage.

Anyway, PA shut down all "non-life-sustaining businesses" back in March. 27/?

Another self-inflicted wound by @GovernorTomWolf here: the Governor's administration provided testimony that the business closure orders (even though they are totally ineffective) are merely suspended as opposed to expired. 28/?

However, this is less unforced: the Governor's business closure order "is effective immediately and will remain in effect until further notice" which is different than the Governor's Stay at Home Order which had a definitive end date. 29/?

3rd HOLDING Court actually applies "rational basis review" to Business Closure. 30/?

BUT: "Even with this forgiving standard as its guide, the Court nevertheless holds that the [business closure order] was so arbitrary in its creation, scope and administration as to fail constitutional scrutiny." 30/?

A lack of initial transparency really came back to bite @GovernorTomWolf. The Admin never set forth a public standard as to how they determined life-sustaining or not. @PADCEDnews got hit in their waiver process, and Gov. Wolf lost his whole order b/c of no standardization. 31/?

"The explanation for how Defendants' policy team chose businesses were "lief-sustaining" and which were "non-life-sustaining" is circuitous, at best....[they] acknowledged that the team simply applied their common sense judgement..." 32/?

This is bad for the Gov: "Essentially, a class of business is "life-sustaining" if it is on the list and it is on the list because it is "life-sustaining."

Poor governmental transparency can lend to a judge finding that the government acted arbitrarily and capriciously. 33/?

The DCED waiver process also lent to a finding of unconstitutionality. "Defendants closed the waiver process because the backlog of requests slowed the process down. Defendants decided to go "from a slowed process to no process." Court describes as "shockingly arbitrary." 34/?

4th HOLDING: DCED waiver process and "life-sustaining" designation (rational basis standard) violated the Equal Protection Clause because @GovernorTomWolf never articulated a coherent definition of what was life-sustaining. Those businesses simply "were." 35/?

End of decision: the Court struck down key provisions of @GovernorTomWolf's #COVID_19 executive orders...that expired months ago. The business closure order was effectively null, and the Stay at Home Order (IMO) did expire. 35/?

HOLDINGS:
- Congregate gathering limits of 7/15/2020 order are UNCONSTITUTIONAL
- Stay at Home Order was UNCONSTITUTIONAL
- Business Closure Order was UNCONSTITUTIONAL (doubly!)
36/? #Pennsylvania #COVID_19

My thoughts:

The court wrote a strong libertarian-minded opinion that fairly hit @GovernorTomWolf in his initial broad and self-described "draconian" orders which were accompanied by apparently arbitrary standards.

The court also writes as if #COVID_19 is over. 37/?

Missing from this lengthy opinion are the following:

In the last 6 months, 145,063 Pennsylvanians have tested positive for COVID-19. As of today, almost 8,000 of us have died.

These orders certainly saved lives, whether written tightly or not. 38/?

Some orders were struck down. WHAT'S LEFT?

The @GovernorTomWolf restrictions on restaurants and other businesses, @SecretaryLevine's cleaning & worker safety requirements, THE MASK ORDER, educational guidance. Much more remains than was struck down.

Fin. #COVID_19 39/39.

@threadreaderapp

https://twitter.com/LegalLevy/status/1305590176903815170?s=20

.@SecretaryLevine declines to answer questions on the COVID-19 decision, noting she's not an attorney.

Lawyers in the Office of General Counsel will strategize later.