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Pennsylvania businesses challenge state closure order (Updated)

UPDATE: On May 6, after referral to the full court, the application for stay was denied without public dissent.

Yet another pandemic-related emergency filing reached the Supreme Court tonight. A group of Pennsylvania businesses led by the Friends of Danny DeVito, a committee formed to support a candidate for a seat in the state’s legislature (and no relation to the famous actor), asked the justices to temporarily block the enforcement of the executive order entered last month by the state’s governor, telling them that the order and others like it are doing “substantial, unprecedented damage to the economy.”

On March 19, 2020, in response to the COVID-19 crisis, Pennsylvania Governor Thomas Wolf entered the order at the heart of the case, which requires the closure of the physical operations of all businesses that are determined to be “non-life-sustaining.” The governor also created a waiver process through which businesses deemed non-life-sustaining could apply for waivers that would allow them to reopen.

The challengers in the case went to state court in Pennsylvania, where they argued (among other things) that the shutdown order violated their constitutional right not to have their property taken without due process of law. The Pennsylvania Supreme Court declined to block the order, leading to today’s filing. The challengers warned that, unless the U.S. Supreme Court puts the governor’s order on hold and eventually grants the petition for review that they expect to file, they “and tens of thousands of other businesses may not be able to recover from the severe financial distress caused by” the governor’s order.

The challengers’ request went to Justice Samuel Alito, who handles emergency appeals from the geographic area that includes Pennsylvania. Alito can rule on the request on his own or refer it to the full court.

UPDATE: Justice Samuel Alito has called for a response to the businesses’ request for a stay of the governor’s shutdown order. It is due on Monday, May 4, at noon ET.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Pennsylvania businesses challenge state closure order (Updated), SCOTUSblog (Apr. 27, 2020, 8:34 PM),