The Third Circuit is currently considering whether Pennsylvania’s business closure orders (Closure Orders) violate certain individual rights protected by the U.S. Constitution.  Last year, a District Court in the Western District of Pennsylvania ruled that the Closure Orders were unconstitutional.  The District Court authored a very broad opinion, determining that the orders violated the Constitution on a number of separate grounds.  Jonathan Goldstein and Shawn Rodgers filed an Amicus Curiae Brief on behalf of the Commonwealth Partners Chamber of Entrepreneurs (CP).

The Amicus Brief focuses narrowly on the question of whether the manner in which Pennsylvania enforced the Closure Orders violated procedural due process rights guaranteed under the Fourteenth Amendment.  Pennsylvania offered no procedural safeguards for individuals or businesses – either before or after they suffered a deprivation – once the Governor disbanded the waiver process on April 3, 2020.  The Amicus Brief explores what procedural due process requires in light of the COVID-19 public health emergency.  Pennsylvania has demonstrated a startling lack of transparency related to its response to the crisis.  This lack of transparency has resulted in virtually no judicial oversight and the denial of standard procedural safeguards – safeguards that ensure government actors do not unduly encroach on individual rights.

The Amicus Brief recognizes that the COVID-19 pandemic created an unprecedented health emergency, and that Pennsylvania – like every state – needed to take emergency measures to protect its citizens.  Government action – even emergency measures – must remain within the limits defined by the Constitution.  The Amicus directs the Third Circuit’s attention to the process that Pennsylvania utilized to divide all businesses and professions into two separate categories: “life-sustaining” and “non-life-sustaining.”  This categorization determined whether a particular business could open and resume work, or whether it remained closed indefinitely.  The record developed in the District Court revealed that the bureaucrats responsible for this categorization failed to use a clearly defined standard for assessing Pennsylvania businesses.  Bureaucrats made decisions based upon subjective criteria and without creating a record for later review.  The Amicus Brief discusses the waiver process overseen by the Department of Community and Economic Development (“DCED”), which was the only mechanism that afforded any review of the categorizations imposed by nameless bureaucrats.  This process ended on April 3, 2020.  Similarly, the Pennsylvania Supreme Court determined that individuals and businesses had no right to judicial review from a denial of a waiver request.

Early in the COVID-19 pandemic, courts justified the lack of due process based upon the temporary nature of the Closure Orders.  As the crisis has continued, it appears the right to procedural protections increasingly will depend upon the distinction between temporary and indefinite deprivation.