On March 9, 2020, Governor Pritzker issued a proclamation declaring a disaster exists in Illinois due to COVID-19.
On March 12, 2020, Governor Pritzker issued his first executive order related to COVID-19 – an order extending the application deadlines for cannabis growers. The following COVID-19 Executive Orders followed:
March 13, 2020 – COVID-19 Executive Order 2 – cancelled all events and private gatherings of 1,000 people.
March 16, 2020 – COVID -19 Executive Order 5 – closed all bars and restaurants through March 30, 2020.
March 20, 2020 – COVID-19 Executive Order 8 – ordered residents to stay at home.
April 1, 2020 – COVID-19 Executive Order 16 – extended all previous executive orders until April 30.
COVID-19 Executive Order 16 and other similar executive orders extending previous executive orders exceeds the authority of the Governor. In other words, the Governor does not have the authority to require non-essential businesses to remain closed and does not have the authority to order residents of Illinois to stay at home beyond April 9, 2020.
Pursuant to the Illinois Emergency Management Agency Act, 20 ILCS 3305/1 et, seq., upon the occurrence of a “public health emergency”, the Governor is given certain enumerated emergency powers. If the Coronavirus is a “public health emergency” (arguments on this subject the author will reserve for another writing), the Governor may make “all lawful necessary orders, rules and regulations” to preserve the lives and property of the people of Illinois and protect the public peace, health, and safety.
HOWEVER, section 7 of the 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. The proclamation was issued March 9, 2020, therefore, the Governors emergency powers and authority ended April 8, 2020.
Governor Pritzker arguably had the authority to issue the initial executive orders to close businesses and order residents to stay at home. 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.
The Tenth Amendment to the U.S. Constitution provides for state sovereignty in a situation such as this therefore the federal government appears to be precluded from enjoining the Governor from actions in violation of the Act. Such duty falls to the Illinois Attorney General whereby he is to investigate violations of the statutes of the State of Illinois. 15 ILCS 205/4. A private citizen with proper standing could file suit challenging the breach of law but such would be impracticable given the essence of time and the current limited court access to individuals. The proper and expeditious course of action is for the Illinois Attorney General to perform his statutory obligation and protect the people of the State of Illinois by seeking a writ of mandamus terminating all COVID-19 executive orders as of April 8, 2020. Any extensions of the COVID-19 executive orders beyond such date are appropriate for the Illinois legislature to debate and codify into statutory law.
By Michael Ciesla, LL.M