Pennsylvania Gov. Tom Wolf puts on a mask in Harrisburg, Pa., May 29.
Photo: Joe Hermitt/The Patriot-News via Associated PressWhen Lamar Alexander ran for governor of Tennessee in 1978, his wife confronted him with a question: “Why?” Although there are 55 governors in the U.S. (one for each state and the five populated territories), they tend, as Mr. Alexander discovered, to be visible only as glorified greeters for visiting delegations, as lobbyists in Washington, or “leaping out of helicopters and pulling the cords on those loud guns at the National Guard camps.”
That is, until the coronavirus.
On March 13, President Trump declared the Covid-19 outbreak a national emergency under the terms of the 1976 National Emergencies Act. But when he claimed “total authority” to determine when emergency measures could be ramped down, he encountered fierce blowback from governors, who insisted Washington doesn’t have absolute power over the states.
The day of the governors had arrived. In Michigan, Gov. Gretchen Whitmer imposed a blanket stay-at-home order on March 23, banning gatherings among people who are “not part of a single household” and insisting that residents leave their homes only for tasks the governor deemed essential, such as grocery shopping. In Delaware, Gov. John Carney issued an executive decree banning all “nonessential mass gatherings,” imposing pre-emptive restrictions on “price gouging,” and reserving to himself “the right to take or direct state or local authorities to take, without issuance of further written order, any other necessary actions.” (He has since issued at least 29 executive orders that cite “the authority vested in me as Governor of the State of Delaware.”) On March 27, Rhode Island Gov. Gina Raimondo instructed police and National Guard personnel to ferret out refugees from New York with door-to-door checks.
In the first pass of pandemic fear over American communities, residents locked their doors, shunned their neighbors, and closed their businesses, as though a medieval plague were soon to march through their streets. Mercifully, our most harrowing fears didn’t play out. As people began to lift up their heads, they also started wondering who, in a republic that is supposed to function by the consent of the governed, granted to the governors powers so all-encompassing, and whether these powers will become a “new normal” whenever an emergency can be invoked.
The genius of the American political system is rooted in the Constitution’s limitations on power. Pennsylvania is the place where that document was written, which makes the pandemic response of Pennsylvania’s Gov. Tom Wolf all the more grinding.
Three days after Mr. Trump’s emergency declaration, Mr. Wolf ordered the closure of all schools and public parks. Three days after that, he issued a complicated and draconian order that closed all “non-life-sustaining businesses” and threatened “enforcement actions” for those that stayed open. At the beginning of April, Mr. Wolf handed down yet more orders, mandating that residents stay home and wear masks while outside.
These orders caused Pennsylvania’s economic output to decline more than twice as much as it did during the 2007-09 recession, and with more than twice the job losses. In this year’s second quarter, more than a million jobs disappeared, with the heaviest losses falling on small retail business. Even health care shrank, as dentists and general practitioners were forced to close or curtail operations.
Many of Gov. Wolf’s actions have seemed arbitrary and capricious. He didn’t hesitate to issue 6,124 “exemptions” to selected firms in Pennsylvania, from Alexander’s Well Drilling in Adams County to the White Horse Diner in York County. (One such waiver was for Mr. Wolf’s former business, a kitchen and bath supply company, but it was revoked when a story on the exemption appeared in the Philadelphia Inquirer.)
When protesters gathered at the Capitol in Harrisburg on April 20 and May 15 to demand a relaxation of the shutdown, Mr. Wolf said that mass gatherings would risk spreading the virus by gathering. That didn’t stop him from joining an even larger Black Lives Matter protest on June 3. His health secretary, Rachel Levine, explained that there are “obviously significant social issues that are present, that people feel that they need to have a voice, and so the governor is always supportive of that and is participating.” But on June 17 the state Health Department sued to close down an open-air car show in Carlisle because of the “strong potential for the spread of infection.”
Many state legislators were not amused. Republicans in both houses proposed amending the state constitution to prevent further emergency declarations longer than 30 days without legislative approval. A similar restriction is part of a new bill in the Delaware Legislature. “For months, the legislative branch was completely out of business,” while Gov. Carney arrogated the full powers of governance, said Delaware state Rep. Richard G. Collins. In at least seven states (including Kentucky, Michigan, New York and North Carolina), lawsuits have successfully challenged governors’ restrictions.
More than a century and a half ago, the U.S. Supreme Court ruled that even in the midst of civil war, governments had no business overriding constitutional guarantees in the name of public safety. “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances,” wrote Justice David Davis in Ex parte Milligan (1866). The day of the governors has come, but it may not last long, as Americans reassert the limits of the Constitution.
Mr. Guelzo is a senior research scholar at Princeton University and a visiting fellow at the Heritage Foundation.
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