Judge Stickman’s ruling will undoubtedly be appealed to Third Circuit, and I wouldn’t be surprised if Third Circuit hears the case en banc. Full disclosure: I was a law clerk for then-Chief Judge of the 3rd Circuit, Theodore McKee. https://twitter.com/stephenj_caruso/status/1305543878615928833

(2) It also appears, to the best of my knowledge, that this is Judge Stickman’s first time publishing an opinion on a matter that is a purely a question of constitutional law during his short time in the federal bench (one year)...

(3) Kevin Levy @LegalLevy has an excellent analysis and summary of the opinion here and I won’t reiterate here as he gives the opinion excellent treatment... https://twitter.com/legallevy/status/1305548667139522560

(4) But I’ll point out just a few other aspects of the opinion that shouldn’t go unmentioned. Page 15, footnote 9 raises a red flag, and at the very least raises a few eye brows and head scratches. Stickman’s justification for even entertaining the constitutionality of Wolf’s...

(5) emergency declaration on anything BUT long-standing precedent of judicial deference to the judgment and exercise of state police powers turns on three dissenting SCOTUS justices in the case Calvary Chapel v. Sisolak, of which the majority denied review of a similar emergency

(6) emergency powers case out of the 9th Circuit. Specifically, Stickman leans on Justice Alito’s dissent of the denial of review in which he is skeptical that courts should exercise judicial deference and lower standards of review on matters of emergency health crises...

(7) The problem, of course, is that SCOTUS denial of review nor Alito’s dissent are precedential, and neither are weighty sources of authority to reverse course on decades and decades of precedent handing broad deference to exercises of the police power...

(8) Interesting, Stickman acknowledges weakness of his reasoning in a footnote buried at page 15. He states that he “is aware that neither [SCOTUS]’s denial of review, nor Justice Alito’s dissent are precedential, however, in light of the facts and circumstances in this...

(9) the Court finds Justice Alito’s dissent instructive and persuasive regarding the issues presented.” Otherwise, Stickman leans on one recent district court ruling and a few academic articles to justify upending decades of deference, typically rational basis review over...

(10) these types of matters involving emergency declarations. Indeed, the basis for such a reversal is arguably too thin and too undeveloped to justify a change in doctrinal course...

(11) Second, Stickman’s invocation of Lochner v. New York at page 52 is puzzling. The Lochner era in the early 1900s was a dark, dark moment in American constitutional history, where SCOTUS struck down government’s economic regulations economic...

(12) on substantive due process grounds, ie substituting its judgment for how the state should implement economic policy regarding liberty and contract rights. The Court has since disavowed the Lochner era (over and over again)...

(13) But Stickman has a different view. His opinion states “economic substantive due process reached its apex in the Lochner era... and was considerably recalibrated and de-emphasized by the ‘New Deal Supreme Court’ and later jurisprudence...

(14) “Nevertheless, our [SCOTUS] has never repudiated the recognition that a citizen has the right to work for a living and pursue his or her chosen occupation.” ...

(15) For a sitting federal judge to opine that there was once a “New Deal Supreme Court” is curious, in and of itself, but more worrisome is his nonchalant tone that seems to suggest that Lochner era jurisprudence IS NOT dead, and that in some circumstances, it might still ...

(16) be alive under the right circumstance, claim or matter in dispute, such as contract, economic liberty, etc. Whether that was Stickman’s intent is unclear, nonetheless, that Lochner is cited in the context of the “New Deal Supreme Court” in a case implicating, in part,

(17) economic liberty, contract, etc. is a bit worrisome. The more troubling aspect of this is whether First Amendment doctrine will continue to be weaponized to strike down government exercises of police power, thus obscuring the real doctrinal motive —>

(18) resuscitating Lochner-era economic substantive due process in the name of First Amendment doctrine...

(19) One last musing. Stickman overemphasizing the courts role in being the “only meaningful check on the exercise of the [police] power.” He argues that Wolf was permitted to act with little, if any, meaningful input from the PA assembly. This is curious. The very statute that..

(20) delegated to Wolf broad and wide-ranging latitude to declare emergencies and take action necessary to preserve the health and safety was enacted by who? You guessed it, the PA ASSEMBLY, and it came with a number of “meaningful checks” ...

(21) such as expiration dates, time limits, and a handy concurrent resolution provision for the Assembly to terminate the emergency declaration. Now, could the statute include even more “meaningful checks”? Of course it could. The solution to that problem is for the Assembly ...

(22) to go back to the drawing board, amend the statute and fill the gaps of the legislation with provisions that would restrict some of the Governor’s broad sweeping powers as “meaningful checks.”