Pritzker extends stay at home order til May 30, but how long will the law allow him to do so?
Cook County Record| Apr 23, 2020
Even as other states move forward with plans to allow citizens to resume a range of aspects of their past normal lives, Illinois Gov. JB Pritzker has extended Illinois’ stay at home order through May 30, saying he had “no choice” in continuing to head up the state’s response to the spread of COVID-19.
A new lawsuit, filed by a downstate Republican member of the Illinois House, will ask the courts to weigh in on whether the governor has overstepped his bounds, arguing Pritzker doesn’t have the power to simply declare new 30-day emergencies for the same emergency, over and over again, “into perpetuity.”
The lawsuit was filed in Clay County Circuit Court by Illinois State Rep. Darren Bailey, R-Xenia, within hours of Pritzker’s announcement of his intent to extend the stay at home order 30 days beyond its current April 30 expiration date. Bailey is represented by attorney Thomas G. Devore, of Greenville.
Illinois State Rep. Darren Bailey, R-Xenia | repbailey.com
The lawsuit asserts Pritzker must secure permission from the Illinois General Assembly before he continues to exercise near total control over the economy, organizations and personal lives of those living and working in Illinois.
“Pritzker seemingly believes he can issue continuing proclamations recognizing the same COVID-19 pandemic as a ‘continuing disaster’ every 30 days whereby he can continually invoke the emergency powers of the Illinois Emergency Management Act into perpetuity,” Bailey said in a brief accompanying his complaint. “… If the Legislature intended to delegate to the Office of the Governor the emergency powers for the complete duration of a continuing disaster they would have written as much into the Illinois Emergency Management Act.
“The legislature intended to limit the use of the emergency powers by the Governor in the event of a disaster for a 30-day period as provided in the clear and unambigious language of the Illinois Emergency Management Act.
“… Any other interpretation of the relevant provision of the Illinois Emergency Management Act would render the 30-day limitation meaningless.”
The lawsuit comes as others have raised questions over the limits on the governor’s power, as well.
Attorney Michael Ciesla, of Northbrook, laid out his arguments against the continued lockdown orders in a position paper he recently published to his firm’s website.
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“Gov. Pritzker arguably had the authority to issue the initial executive orders to close businesses and order residents to stay at home,” Ciesla wrote. “The Governor also, arguably, had the authority to extend the orders but only through April 8 as his authority, and the executive orders, expired on that date.”
On April 23, Pritzker announced his intent to sign a new executive order, extending his current stay at home order through May 30. The current stay at home order, issued in late March, is scheduled to expire April 30.
Pritzker has said he signed the current order, and will sign the extension order, to save lives of Illinoisans threatened by the novel coronavirus that causes COVID-19.
He signed the orders as an extension of the emergency powers he invoked in March under the Illinois Emergency Management Agency (IEMA) Act. That same law and citation has underpinned Pritzker’s series of executive orders and other actions he has said are needed to boost the state’s pandemic response and prevent “tens of thousands” of additional deaths in Illinois from the illness.
As of April 23, Illinois has recorded 36,934 confirmed cases of COVID-19, out of 173,316 individuals tested. Of those, 1,688 Illinoisans have died from the illness, according to the Illinois Department of Public Health.
According to IDPH, 25,811 of those confirmed COVID cases and 1,142 deaths have been recorded in Chicago and suburban Cook County.
After declaring the emergency, Pritzker moved to clamp down on gatherings, and then closed schools and a host of businesses. He followed with a stay at home order, which shuttered all but those businesses deemed “essential.”
Similar orders have been imposed in most U.S. states. Those shutdown orders have also played a large role in cratering the economy in Illinois throughout the U.S., producing massive and growing unemployment. As the shutdown orders have remained in place, businesses across the country have closed. Many will never reopen.
While expressing sympathy for victims of the economic carnage, Pritzker has maintained his resistance to the idea of allowing most businesses to reopen. He has said repeatedly he will not allow such a reopening until the state achieves sufficient levels of testing, contact tracing and treatment of the virus, as well as sufficient stores of personal protective equipment for health care workers and first responders.
The governor has not specified what levels will persuade him to remove the COVID-19 restrictions, saying they depend on research and public health observations and his consultations with a range of experts and epidemiological models. While he discussed the data at an April 23 press conference, he has not released those models to the public.
Scott Szala, an attorney and adjunct professor at the University of Illinois College of Law in Champaign, noted the governor has the authority under the IEMA Act to act to protect public health and safety in response to a range of natural and manmade disasters, including an infectious disease outbreak.
Szala practiced law at the firm of Winston & Strawn in Chicago for 35 years, and has taught for six years, focusing on Illinois constitutional law and policy.
Szala noted Pritzker, as governor, is also vested by the Illinois state constitution with the authority to ensure the laws of the state are faithfully executed.
Together, those mandates provide him with broad powers during a time of emergency, Szala said.
Section 7 of the IEMA Act says: “In the event of a disaster… the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days” a series of emergency powers.
Those powers include the power “to control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein” and the power to “control, restrict and regulate by rationing, freezing, use of quotes, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods, or services.”
However, Szala said a challenge to the governor’s authority could come, particularly as the General Assembly remains absent and in recess, amid the state of emergency.
“I think the governor is staying within the scope of the law and the constitution, at this time,” Szala said . “But if this continues for too long, there could be an issue.”
Ciesla agreed the governor’s emergency powers are broad.
But he said his reading of Section 7 of the IEMA Act lead him to conclude the governor’s powers are limited to 30 days, alone, and the governor does not have the ability to simply continue to extend his emergency powers, at whim, in 30 day increments for as long as he believes is necessary.
“… Section 7 of the (Illinois Emergency Management Act) expressly states that the Governor shall have such emergency powers for a period not to exceed 30 days from the date of the proclamation declaring a disaster exists,” Ciesla wrote in his position paper. “The proclamation was issued March 9, 2020, therefore, the Governors (sic) emergency powers and authority ended April 8, 2020.”
Szala agreed neither the IEMA Act nor the state constitution grant the governor unlimited powers, nor the ability to simply continue forever.
Szala said he believed, at some point, the General Assembly would need to convene to consider whether to continue to grant the governor the powers he currently wields under the cover of the IEMA law. As the General Assembly is dominated by Pritzker’s fellow Democrats, Szala said he did not expect Pritzker would experience any pushback on any further requests for emergency powers.
In his lawsuit, Rep. Bailey said it is “past time for the legislative branch to act” on the question of Pritzker’s continued use of unchecked emergency powers.
Ciesla said he was not aware of case law or precedent regarding whether the governor can essentially declare an open-ended emergency, so long as it is addressed every 30 days, as asserted by the governor.
“But that’s mainly because nobody’s ever attempted this before,” Ciesla said.
Ciesla said the issue could be ripe for a legal challenge. He’d prefer the action originate with the Illinois Attorney General’s Office – though Ciesla conceded the likelihood of such a challenge from one of Attorney General Kwame Raoul, a Democrat and Pritzker political ally, to be very slim.
In other states, stay at home and lockdown orders have been challenged in the courts, without success to this point. In Wisconsin, that state’s Supreme Court is poised to consider a challenge brought by the Republican-controlled state legislature against Democratic Gov. Tony Evers’ extension of that state’s “Safer at Home” order through May 26.
Szala said he also doubted a lawsuit in Illinois could succeed, particularly at this relatively early stage of the pandemic response. He expressed doubts over whether “any circuit judge in the state” would consider blocking Pritzker’s emergency powers at this time.
Ciesla said he did not anticipate bringing such a lawsuit himself, either. He similarly acknowledged the difficulty of success in an Illinois courtroom, much less the ability to even receive a hearing for such a case at a time when the courts all but closed.
“I’m as frustrated by this as much as anyone else,” said Ciesla. “But when I tried to match up what the governor has done to the law, I just don’t think it matches up.”
The Cook County Record posed the questions raised in Ciesla’s position paper to the Illinois Attorney General’s Office. A spokesperson at that office referred the questions to the governor’s office.
At the time of publication, the Pritzker administration’s COVID response office had also not replied to those questions from The Cook County Record.
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