By Matt Fair

Law360 (May 4, 2020, 4:07 PM EDT ) Pennsylvania's governor told the U.S. Supreme Court on Monday that an attempt by two individuals and a golf course to upend an executive order that shuttered nonessential businesses during the coronavirus pandemic could invite an explosion of new infections.

Gov. Tom Wolf urged the high court to reject arguments that his executive order, which he signed in mid-March to help slow the spread of the deadly coronavirus in the state, represented an infringement on due process and freedom of assembly rights under the U.S. Constitution.

He said the restrictions imposed under his order had been carefully balanced against the need to protect the public and prevent hospitals from being inundated with coronavirus cases.

"Reopenings that are not structured around social distancing and public health guidance would result in a spike of cases," the governor argued. "Applicants seek to upend this carefully planned process and force the commonwealth to prematurely hasten the reopening of all physical locations, a move that experts have declared will further hurt our state economy and cost lives."

A Republican state legislative candidate, a Warren County golf course and a Lehigh Valley realtor asked the justices last week to consider the constitutionality of Wolf's executive order following the Pennsylvania Supreme Court's rejection of their arguments last month.

Wolf ordered the closure of certain enumerated "non-life-sustaining" businesses in a March 19 executive order as COVID-19 began to spread steadily across Pennsylvania.

As the order went into effect, the governor provided a system for certain businesses to apply for waivers that would allow them to potentially continue operating throughout the duration of the emergency.

Less than a week later, the Pennsylvania Supreme Court was presented with a petition asking that the order be struck down as an improper application of the governor's powers under the state's emergency code and as an infringement on certain constitutional rights.

In particular, the challengers argued that the waiver process implemented by the governor through which businesses could seek exemptions from the closure order did not pass constitutional muster under the due process clause and that the order constituted an improper restriction on the rights of free speech and freedom of assembly.

The state's Supreme Court, however, ruled 4-3 that the governor's powers during a state of emergency and the temporary nature of the closure order overrode the concerns raised by the challengers.

But in a partial dissent, Chief Justice Thomas Saylor and two of his colleagues raised concerns about the lack of judicial review associated with the waiver process.

In bringing the case to the U.S. Supreme Court, the challengers said the lack of judicial review in the state's process for issuing waivers was "unprecedented and constitutes a serious denial of the constitutional rights of petitioners and tens of thousands of Pennsylvania businesses that are similarly situated."

A day after the petition was filed with the high court, Justice Samuel Alito ordered Wolf to provide a response by midday Monday.

In his brief on Monday, Wolf said his executive order was clearly a lawful exercise of the commonwealth's police powers given the severity of the emergency, and that nearly every other state across the country had responded in a similar manner to the pandemic.

He argued that the process of determining which businesses should be deemed "life sustaining" had been based on an industry classification system developed by the U.S. Office of Management and Budget, and that concerns over the due process rights of businesses in determining which were eligible to remain open were outweighed by the need to respond quickly to the pandemic.

"Applicants' argument is nothing more than a public policy disagreement with the governor's determination as to which physical locations would remain open and which would be temporarily closed," Wolf argued. "Applicants essentially argue that if they had been empowered by law to make these life and death decisions, they would have responded to this global crisis differently."

Marc Scaringi, an attorney with Scaringi Law representing the challengers, said that Wolf's order had been an overly broad use of executive power in response to a situation that, despite more than 60,000 COVID-19 deaths nationwide, did not warrant it.

"For the overwhelming majority of the people of Pennsylvania, COVID-19 is no more than a mild virus," he said, adding that most of the fatalities from the illness were among the elderly.

"The serious harm that can result from this viral illness affects only a very, very small subset of the population, and it's focused in Pennsylvania's nursing homes, in which reside the elderly, many of whom are infirm," he said. "That's where the efforts of Gov. Wolf should've been focused from the beginning. They didn't identify any outbreak of COVID-19 at any of my clients' businesses."

A representative for the governor did not immediately return a message seeking comment.

The challengers are represented by Marc Scaringi of Scaringi Law.

The commonwealth is represented by J. Bart Delone of the Pennsylvania Office of Attorney General.

The case is Friends of Danny DeVito et al. v. Tom Wolf et al., case number 19A1032, before the U.S. Supreme Court.

--Editing by Jack Karp.

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