By Lisa Soronen

A number of Pennsylvania business owners have requested the U.S. Supreme Court stay enforcement of Governor Tom Wolf’s executive order “compelling the closure of the physical operations of all businesses and entities that he deemed to be nonlife-sustaining.”

Wolf allowed non-life sustaining businesses to apply for a waiver; 18,746 waiver applications have been denied to date.

The business owners allege the executive order amounts to an unconstitutional taking and violates a number of other constitutional rights including equal protection and free speech. The governor invoked three statutory grounds for his and his administration’s authority for the executive order: The Pennsylvania Emergency Management Services Code portions of the Administrative Code, and the Disease Prevention and Control Law.

On April 13 the Supreme Court of Pennsylvania ruled against the business owners on all of their claims. The majority concluded that the governor has broad police powers to protect the health and safety of the citizens of Pennsylvania, the executive order didn’t violate the U.S. Constitution and that the governor has the statutory authority to issue it pursuant to the Emergency Management Services Code.

According to the court orders, three Pennsylvania Supreme Court justices concurred and dissented, “express[ing] concern that although the Executive Order is purported to be temporary, that may not be so for businesses unable to endure the revenue loss associated with being shut down.”

These justices also expressed concern that waiver denials aren’t subject to judicial review.

The business owners note this case has national implications because the Pennsylvania executive order is similar to other executive orders issued across the country.

This request went to Justice Samuel Alito who handles emergency appeals from the 3rd Circuit, which includes Pennsylvania. He can rule on the request alone or refer to the entire Supreme Court.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.