Is Covid-19 a Public Health Emergency? It’s not an absolute ‘yes’

Pursuant to the Illinois Emergency Management Agency Act, 20 ILCS 3305/1 et, seq., (the “Act”) upon the occurrence of a “public health emergency”, the Governor is given certain enumerated emergency powers.  Is the Coronavirus a “public health emergency”?  From a purely legal standpoint, the answer is not an absolute “yes”.

In the event of a “disaster”, the Governor of Illinois may, by proclamation, declare that a disaster exists.  On March 9, 2020, Governor Pritzker issued a proclamation declaring a disaster exists in Illinois due to COVID-19.

Section 4 of the Act defines a “disaster” as an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause including a “public health emergency”.  A “public health emergency” is defined in the same section as an occurrence or imminent threat of illness or health condition that is believed to be caused by, among other things, the appearance of a novel infectious agent or biological toxin and which poses a high probability of a large number of deaths, serious or long term disabilities or significant risk of substantial future harm to a large number of people in the affected area.

The Act is silent about the definition of “large number” which must be a major consideration in the determination of the Governor’s legal authority under the Act.  Merriam Webster defines “large” as “great numbers or quantities.”  Not much help there.  Black’s Law Dictionary is devoid of any definition. 

The author’s legal research found no statute or case law that provides a definition either. However, there are reported legal cases that do provide opinions as whether a specific number in a specific case is a “large number” (335,900 people every six days, U.S. v. Magnuson, 307 F.3d 333 (5th Cir. 2002); 200,000 vehicles, U.S. v. General Motors, Corp., 518 F. 2d 420 (D.C. Ct. of Appeals 1975); 827 households out of 963 (85%), Turnage v. Norfolk Southern Corp., 307 Fed.Appx. 918 (6th Cir. 2009). 

As of April 23, 2020, the Governor stated that Illinois had 1,689 deaths attributed to COVID-19.  As of 2019, Illinois had 12.67 million citizens.  That equates to a one one-hundredth percentage mortality rate in over one month.  It is important to note that the Act limits the definition to “large number of deaths”, not large number of infections which the Illinois legislature could have easily stated if it chose. Even in harder hit States, the mortality rate does not come close to breaking one percent.  

Using the precise language of the Act, the COVID-19 situation in Illinois may not be a public health emergency because the data espoused by the Governor himself does not seem to conclude that the Coronavirus poses a high probability of a large number of deaths, serious or long term disabilities or significant risk of substantial future harm to a large number of people.   Therefore, the emergency powers of the Act should not have been invoked by the Governor, or, at the very least, the emergency powers should have concluded once the data showed that there are not and will not be a large number of deaths or disabilities.  Absent a public health emergency, the duty of imposing the substantive provisions of the Governor’s executive orders would properly be the duty of the General Assembly.

Michael Ciesla