Gov. Tom Wolf threatened Monday to withhold coronavirus recovery aid allocated by the federal government from counties that defy state shutdown orders, prompting some local officials and lawmakers to ask: Can he do that?
The answer, legal experts say, is probably yes — though doing so would invite inevitable legal challenges, incite legislative pushback, and would not affect Philadelphia and its suburban counties to the same extent as rural areas of the commonwealth.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed by President Donald Trump in March, gave wide latitude to governors to distribute their states’ portions of a $150 billion relief fund as they see fit.
Wolf, a Democrat, may be the first governor in the country to directly link allocation decisions to compliance with stay-at-home orders, but even lawyers on the other side of the partisan divide said the policy would likely withstand scrutiny if challenged in court.
“This is a very heavy-handed way of trying to enforce his position when folks are trying to get back to work,” said Jim Schultz, an attorney who previously served as general counsel to Republican Gov. Tom Corbett and as senior associate White House counsel under Trump. “But if he wants to play politics with the dollars, he can certainly do that.”
Still, Wolf’s threat holds more sway over some Pennsylvania counties than others.
The commonwealth’s $5 billion share of the national Coronavirus Relief Fund has been dedicated so far to cover a mix of statewide funding needs and allocations to counties and local governments. The money can be spent on anything from direct assistance to communities and public health-related expenses to covering state budget shortfalls from unexpected pandemic-related losses.
But the CARES Act also set up a direct stream of aid from the federal government to counties with more than 500,000 residents based on their populations. In Pennsylvania that includes Philadelphia and Allegheny, Bucks, Chester, Delaware, Lancaster, and Montgomery Counties.
That means Bucks, which received more than $110 million from the U.S. Treasury, is less dependent upon Wolf’s beneficence. Its county commissioners pushed the governor Sunday to give them a firm date before June 2 on which businesses could reopen, despite reporting a rate of 230 new coronavirus cases per 100,000 residents over the last two weeks.
Generally, Wolf has pegged his decisions on when a county is ready to begin lifting stay-at-home orders to when its 14-day average falls below 50 new cases per 100,000 people. Should Bucks decide to go rogue before then, the governor could do little to touch the funds the federal government has earmarked for the county.
Still, similar defiance from Schuylkill County — with a population of 141,000 and a Board of Commissioners that announced plans Sunday to reopen by the end of the week no matter what the governor says — could mean an end to any financial assistance that county was hoping for from the state.
Lancaster, Dauphin, Franklin, and Lebanon Counties have also declared ends to their shutdowns without waiting for permission, while Huntingdon and Cumberland Counties have said they won’t cite businesses that reopen.
Most of those counties are GOP strongholds that voted for President Trump, and all but Lancaster fall below the 500,000 population threshold for receiving direct federal aid.
But that doesn’t mean Wolf has no financial leverage should a larger county suddenly declare itself open for business, said Jared Walczak of the Tax Foundation, a Washington-based think tank.
Philadelphia, for example, has received some of the state’s pool of recovery money in addition to the $276 million it received directly. That extra cash could be cut off if the city defied Wolf — although Mayor Jim Kenney has supported his moves to keep the city shut down into June.
And even though Bucks County has its own source of recovery funds, Wolf still holds the purse strings on other important sources of assistance, said Commissioner Bob Harvie, a Democrat.
“PEMA money and aid could be withheld from us,” he said, referring to the state’s emergency management agency. “That may also affect FEMA help as well.”
The real roadblock for the governor may lie within the Republican-held legislature, which has already mounted previous challenges to his shutdown order and could attempt to block Wolf’s spending decisions with new state laws.
In Alabama, the state legislators passed a law limiting Gov. Kay Ivey’s control over the $2 billion that state received, leaving 30% up to her discretion and requiring legislative approval for the rest.
And by late Monday, Mike Straub, a spokesperson for House Majority Leader Bryan Cutler (R., Lancaster), was already suggesting that if Wolf acts without legislative approval, he could be in for a fight.
“The simple answer is that our constitution makes it clear it is the role of the General Assembly to appropriate public money,” he said. “The governor cannot do so without our approval.”
Senate Republicans were adopting a more conciliatory tone for now, saying they have an agreement with Wolf to work together on appropriating the federal funds.
“We take him at his word,” a spokesperson said.
Wolf laid out a string of additional penalties on Monday that businesses that reopen in defiant counties could expect to face, including ineligibility for business liability insurance and revocation of liquor licenses.
“I cannot allow residents … to get sick because their local officials can’t see the invisible risk of the virus in their community,” he said Monday. “So I must, and I will, impose consequences.”