THE LOCKDOWN SHOWDOWN
BREWERY OWNER JORDAN Serulneck remembers feeling the pit in his stomach when he found out the state was ordering him to shut his doors—again. “Our rent was still full price,” recalls Serulneck, the co-owner of Seven Sirens Brewing Co. in Bethlehem, Pennsylvania. “We have a loan with a bank, and that still had to be paid.”
It was November 23, 2020, three days before Thanksgiving. Pennsylvania Gov. Tom Wolf, a Democrat, had just ordered a snap shutdown that required bars and restaurants to close on “Thanksgiving Eve” to prevent gatherings that might spread COVID-19. The fact that Seven Sirens had scraped together more than $10,000 to convert an outdoor space into a heated patio ahead of the winter didn’t matter; the governor’s order banned both indoor and outdoor dining.
When the pandemic hit in March 2020, just a few weeks after Seven Sirens had first opened in mid-February, Serulneck complied with the state’s shutdown order. The promised “15 days to slow the spread” turned into weeks, then longer. It wasn’t until months later that any bars, restaurants, or breweries were allowed to reopen for in-person service. Then came the Thanksgiving shutdown, and then another the following month, this time banning indoor dining from December 11 until after the start of the new year.
When Wolf imposed those new shutdowns late in 2020, Serulneck wasn’t the only business owner to groan—or to shrug. Hundreds of Pennsylvania businesses defied the edicts. Some were punished with fines and threatened with loss of their licenses. Serulneck recalls a TV news van that was parked outside Seven Sirens on the night before Thanksgiving “to see if we were going to be hauled out in handcuffs” for flouting the governor’s order.
Thankfully, it didn’t come to that. But Pennsylvania was hardly the only state where a governor took drastic action to curtail commercial and social activity during the pandemic—not just when it began but months after the risks of gathering and dining indoors were well known to anyone who might voluntarily visit a brewery, restaurant, or store.
Andrew Cuomo, then New York’s governor, set curfews and mandated that bars sell food if they wanted to serve alcohol. Michigan Gov. Gretchen Whitmer banned stores from selling anything other than “products necessary to maintain the safety, sanitation, and basic operations of residences.” Many states imposed sweeping mask mandates by executive order rather than through the legislative process.
Governors generally enjoy broad powers during emergencies, which allow them to command the state government in response to a terrorist attack, a hurricane, or, yes, a pandemic. But an emergency is, by definition, a discrete, time-limited event: an immediate crisis that requires an immediate response.
The COVID-19 pandemic has challenged our understanding of what counts as an emergency and when the special powers it triggers should no longer apply. Emergency powers are supposed to give governors the ability to respond quickly
