Governor Wolf created a troublesome problem, both for his credibility and for the people of our Commonwealth. History will mark his ill-conceived, non-essential business waiver policy to be at best, an egregious constitutional violation, and at worst, a massive fraud. As the Governor endeavors to keep certain businesses shuttered, his tenuous hold on the public trust becomes more and more strained.
As the Governor endeavors to keep certain businesses shuttered, his tenuous hold on the public trust becomes more and more strained.
The fiasco commenced when, on March 19, Governor Wolf abruptly ordered all businesses that his administration arbitrarily deemed non-“life sustaining” to close within hours. To add to the randomness of his actions, the next day, he instituted a waiver request process for so called non-“life sustaining” businesses wherein they could ask his administration for permission to remain open.
Pennsylvania business owners, staring down the barrel of losing their livelihoods, jumped to attempt to obtain a waiver. The Department of Community and Economic Development, the Commonwealth agency charged with handling the program, almost immediately received over 42,000 waiver requests. Then, consistent with his erratic behavior, on April 3, the Governor suddenly ended the waiver program.
Many of the 42,000 businesses received no response when the Governor cancelled the program. However, others received waivers and while some received denials. We can only speculate on the who, what, where, and why of the decision-making process. In particular, the names of the chosen few businesses that received waivers remain a mystery. In a move that never engenders the public trust, the administration continues to sandbag any attempt to answer these important questions. Now, the Pennsylvania Senate, narrowly controlled by Republicans, has subpoenaed the information. What that list reveals will be explosive for several reasons.
First, let’s address the constitutional problem with the Governor’s actions. The substantive due process clauses of the Fifth and Fourteenth Amendments protect individuals against arbitrary government action. The administration appears to have employed the waiver program in a completely arbitrary manner. Not only that, the rules by which requests were judged remain mysterious. In many cases, businesses that were denied waivers operated in the same industry and were competitors of those that received them. Governor Wolf cannot credibly say that company A can remain open and not risk contributing to the spread COVID-19 but a similar company B needs to remain closed because it is a potential vector for disease. What rational or reasoned grounds explains this?
Next, the equal protection clause of the Constitution prevents the government from applying a law differently to one person over another without a rational basis for it. But Governor Wolf’s waiver program was just the opposite. Identical companies were treated in a different manner and he can provide no rational basis for it.
Identical companies were treated in a different manner and he can provide no rational basis for it.
The final, and perhaps most damaging problem, might overshadow all others: politics. If the list of business that received waivers includes a significant number of Governor Wolf’s donors, cronies and pet projects, it will inflict a political wound from which he may not recover. It will also undercut any argument that the Governor’s actions pass the rational basis test.
Rather than steady, circumspect leadership, Governor Wolf undermined the public trust at a time when his constituents needed it most. How can the administration continue to admonish the public that its myriad executive orders and public lecturing follow the “data” and the “science” if it gave waivers to businesses based on neither?
The Republican Senate rightly subpoenaed the list of business receiving waivers. Pennsylvanians must support this effort, demand transparency and hold the Wolf administration accountable.
Wally Zimolong, Esquire is a veteran trial lawyer with vast experience having acted as lead plaintiff or defense counsel in nearly 500 cases in federal and state court, private arbitration, and before administrative law judges. He has tried numerous cases to verdict and boasts an undefeated jury trial record. @WallyZimolong.