PHILADELPHIA (CN) — While infections are going down in a state where over half of the population is vaccinated, several Pennsylvania counties still took to the Third Circuit Thursday saying the governor was out of line last year when he issued his stay-at-home orders to stop the spread of Covid-19.
Governor Tom Wolf declared a state of emergency throughout the commonwealth March 13, 2020, ordering people to stay home and shut down “non-life-sustaining" businesses and schools.
By the end of that month Pennsylvania would see more than 1,000 Covid cases a day, and it would only get worse.
Last May several counties and Republican legislators sued the governor and the Department of Health secretary, seeking a declaration that the orders violated their civil rights and that the governor overstepped his authority when issuing them.
The counties got a win a few months later, when a Trump-appointed federal judge found that the governor had good intentions when closing the state but “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge.”
Before a three-judge panel Thursday, Bart DeLone, representing the state government, sought to reverse that declaration.
Seeing as the stay-at-home orders have long expired, DeLone said the biggest question for the panel was mootness.
U.S. Circuit Judge Kent Jordan appeared unsure, however, that these orders could not be reinstated, pointing to a slight uptick in Covid cases and the delta variant.
“Are you prepared to stand here and say that the secretary will not impose any stay-at-home orders,” asked Jordan, who was appointed by former President George W. Bush. “Aren’t we at a spot where we can say ‘well no it's not absolutely clear’?”
DeLone replied that he is confident there will be no orders affecting the whole commonwealth again, stressing that times are different.
“A lot has changed in the last year, a lot of the population is vaccinated,” said DeLone. “It's just not the same circumstance.”
Indeed over 51% of Pennsylvania residents are fully vaccinated and 56% have at least one dose.
Attorney for the counties Thomas King says that these orders could easily go back into effect, so the case is not moot.
“The delta variant is taking over, shutdowns are happening across the country,” said King. “We are perhaps in the same place we were some time ago.”
Jordan noted that vaccines are widespread these days and that the climate is obviously very different than last year, adding the government was just doing what they thought was best.
“Wasn’t the environment much different than it is now,” asked Jordan. “A vaccine was just a thought back then and the commonwealth was just trying to protect its people.”
King was not buying it, calling the vaccines experimental because they have been approved by the Food and Drug Administration for only emergency use.
Jordan pushed back, questioning how that was relevant to the argument and assured King that the vaccines were thoroughly studies and found to be highly effective.
King also claimed that Pennsylvania residents’ rights were violated by these orders, at which point Jordan posed a hypothetical.
“No matter how deadly or contagious, is it your position that the government can't touch it because we have a right to go out,” Jordan asked the Dillon McCandless attorney.
King said plain and simple: yes.
U.S. Circuit Judge Patty Schwartz returned the argument to mootness, referring to an amendment that passed in May after Pennsylvanians voted in the state primary to limit the governor's authority in cases of emergency such as the pandemic.
King pointed out that while the governor may now be limited in his scope on what he can and cannot impose, the secretary could still very well impose such orders.
The Obama-appointed Schwartz remained unconvinced.
“Whether or not someone has authority doesn’t mean that there is a reasonable chance the orders will be reimposed,” said Schwartz.
King expressed that he does not feel that it is unreasonable to think the orders could come back.
“I don’t think it is extremely unlikely as we're still wearing masks in the courtroom,” said King.
Neither King nor DeLone immediately responded to email seeking comment. U.S. Circuit Judge Michael Chagares, another bush appointee, rounded out Thursday’s panel.
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