Oct. 21, 2021

Cites series of executive and judicial overreaches

HARRISBURG – Following the vote to sustain the acting secretary of Health’s Order Requiring Face Coverings in School Entities (“School Masking Order”) by the Joint Committee on Documents, Speaker of the House Bryan Cutler (R-Lancaster) issued the following statement:

Today’s proceeding before the Joint Committee on Documents was not about whether school children should wear face coverings. It was about whether or not each branch of our state government and the officials which work in those branches will follow the law and respect our Constitution’s design that directs the legislative branch to make the laws that govern our people.

“No unelected government bureaucrat should ever have the sole and unilateral authority to issue open-ended “orders” – whether they focus on public health response or something else. To give such limitless discretion would elevate the acting secretary’s power above at least two branches of our tripartite government.

“We heard today that the department’s position is it can do anything up to and including closing businesses if they feel it protects children in schools. These kinds of open-ended orders and discretion were never considered when the law the department is relying on was passed. This is exactly why the people voted to amend the Constitution and limit executive power.

“I applaud the House Health Committee for its diligence in ensuring that our laws, including the Independent Regulatory Review Act, be followed. The Joint Committee on Documents exists for the purposes of making sure Pennsylvania’s rulemaking process is followed and should not decline to demand compliance with the laws. 

“Unfortunately, this School Masking Order is a symptom of a larger constitutional disease that I warned of when the current legislative session began.

“The continued disobedience to the Constitution’s fragile but necessary divisions of responsibility and authority threaten the legitimacy of actions taken by our government and invite the further erosion of our system of government that depends on respecting those specifically assigned duties.

“Instead, the General Assembly has had to contend with issue after issue that has been advanced in the administrative state by the executive departments or dictated by the courts.

“Examples include the governor’s unilateral decision to expand Medicaid in 2015, the decertification of election machines prior to the 2020 election, the issuance of an expansive overtime rule that was opposed by the General Assembly, and the continued efforts to join the Regional Greenhouse Gas Initiative (“RGGI”) without legislative approval.

“These issues – like those that are legislated from the judicial bench – deserve to be debated and considered in the legislative branch, where all Pennsylvanians’ voices are represented and the peoples’ representatives can work out difficult, but important issues for themselves.

“Our executive and judicial branch officials must practice restraint in countenance to the Constitution they swore an oath to - even when that is difficult.

“While the passions of any one issue can be the siren song inviting unconstitutional intervention, in just August of this year the United States Supreme Court rejected a similar disconcerting claim of unchecked agency authority: 

Indeed, the Government’s read of § 361(a) would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in § 361(a) beyond the requirement that the CDC deem a measure “necessary.” 42 U.S.C. § 264(a); 42 C.F.R. § 70.2. Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?

“As Speaker of the House, I am a constitutional officer and I firmly believe that no matter how difficult or frustrating, the law must always be followed.

“The governor certainly knew this when he invited me to recall the House of Representatives to voting session to pass a mask mandate bill for him to sign into law.  

“Instead of respecting the legitimate differences of opinion on how best to manage the challenges of schools and COVID-19 (e.g. local control verses state-directed control), the acting secretary of Health issued an unlawful order to achieve the governor’s ultimate goal. 
“My oath is always to obey, support and defend the Constitution. I take that solemn obligation seriously, which is why I cast my vote against this unlawful order.

“In a representative democracy, the protection for all people is in our processes. Those processes may seem lengthy and full of legislative and regulatory roadblocks, but that is by design, so that no one person, authority or interest can outweigh the voices of the people. Therefore, any time steps in our processes are ignored for any reason, we are eroding the very fabric that holds our democracy together. 

“Finally, I encourage the House’s standing legislative committees to engage in legislative oversight over the executive and judicial departments, including the review of any published or unpublished documents, such as policy statements, to ensure they are not masking as regulations.

“Should our lawmakers find additional cases of evasion of law or process, they should immediately seek to invalidate those efforts.

“Someone once wrote that, “People with good intentions make promises. People with good character keep them.”

“As statewide leaders, we must always keep our promises to the citizens of our Commonwealth by and through their charter – our Constitution.”

Speaker Bryan Cutler
100th Legislative District
Pennsylvania House of Representatives

House Speaker Says Constitution and Law Must be Followed