June 5, 2020
By Timothy Sandefur
Like other states, Pennsylvania implemented a statewide shutdown order in response to the coronavirus pandemic that required businesses to close up—but allowed for certain exceptions. What exactly are those exceptions? That’s an important question, and one that unfortunately, Governor Tom Wolf has chosen not to answer. Instead, his office is handing out exceptions to the shutdown rule without any guidelines or criteria to explain their decisions.
That’s an issue being raised in a lawsuit filed by Wally Zimolong, a member of the Goldwater Institute’s American Freedom Network, who’s suing the state on behalf of businesses that believe they can reopen safely but haven’t been fortunate enough to get the government’s apparently arbitrary permission. The case, filed in the federal district court for the Eastern District of Pennsylvania, argues that the state’s process of granting exceptions to the shutdown without any rhyme or reason violates the equal protection and due process clauses of the federal Constitution.
There’s good precedent for that. The Supreme Court has made clear that while the government has broad authority to regulate businesses—including the power to shut them down if emergency conditions warrant—the state’s authority to regulate must be equal and transparent, and must give those affected some opportunity to make their case.
In the famous 1886 case Yick Wo v. Hopkins, the city of San Francisco passed an ordinance requiring all laundry businesses to be built out of brick, claiming that this was a public safety measure to prevent fires. But the law also allowed city officials to hand out exemptions whenever they wanted, subject to no rules or regulations. Unsurprisingly, the officials gave exemptions to white-owned businesses but not to businesses run by the Chinese, who were heavily persecuted in California at the time.
The Supreme Court ruled that the city violated the Constitution by creating a permit system that lacked any sort of rational or transparent rules. The ordinance did “not prescribe a rule and conditions for the regulation of the use of property for laundry purposes, to which all similarly situated may conform,” wrote the Justices. Instead, it simply drew “an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and on the other those from whom that consent is withheld, at their mere will and pleasure.” Yet “the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another” was “intolerable in any country where freedom prevails, as being the essence of slavery itself.” Now, more than 130 years later, Governor Wolf has drawn an equally arbitrary line for Pennsylvanians, and he should be held accountable.
Whatever one thinks about the wisdom of the recent wave of shutdown orders, we should all be able to agree that the Rule of Law requires transparency and objectivity when the government makes its decisions. Allowing officials to decide what businesses can and cannot operate, without any set of rules or explanation of the rationale, is fundamentally wrong and unconstitutional—it leads to arbitrary actions by government and dangerous precedent for future abuses. Pennsylvania—and all states—should act immediately to publish the objective standards on which they will base their decisions of how to proceed as America moves toward opening up its economy.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.