Courts in Illinois are being asked to weigh in on whether Gov. JB Pritzker and his administration have the legal authority to take a range of actions to respond to the COVID-19 outbreak, including whether the governor had the power to shut down businesses and other organizations for more than 30 days.
Amid these questions, a recent memo written by one of the men in charge of the state’s appellate prosecutors’ office appears to further question the governor’s authority to lockdown the state, absent action from the Illinois General Assembly.
On April 24, the Edgar County Watchdogs, a downstate investigative blog, published a memorandum they said they obtained, which was purportedly authored by David Robinson, chief deputy director of the Illinois State’s Attorney’s Appellate Prosecutor’s Office.
In the memo, dated April 21, Robinson indicates the governor’s reliance on the state law known as the Illinois Emergency Management Act falls short under both the law and the constitution.
The memo, addressed to ISAAPC Director Patrick J. Delfino, expresses concern Pritzker’s actions may violate constitutional rights. Even though those infringements may be “justified” in response to the outbreak of the novel coronavirus that causes COVID-19, Robinson says a court reviewing challenges to the governor’s authority could conclude the constitutional infringements don’t hold up under the legal review standard of “strict scrutiny.” That standard requires necessary infringements of rights to be conducted in a “narrowly tailored” way, using the “least restrictive means” possible.
A statewide stay-at-home order, renewed every 30 days, until the governor decides the emergency has ended, may not survive that standard of review, Robinson said.
He also noted the text of the IEMA Act, cited by the governor when he declared a statewide emergency in early March, expressly limits the governor to the ability to claim broad emergency powers for only 30 days. The text of that law does not expressly authorize the governor to reinstitute the emergency declaration, and claim the powers, in further 30 day increments, as Pritzker has done.
Robinson said he wrote the memo to address questions from county state’s attorneys concerned about how and whether to enforce Pritzker’s stay-at-home order.
“My research leaves me less than confident that a reviewing court will hold that the Governor has the authority close businesses (sic), bar attendance at church services and assemblies in excess of ten citizens (particularly if they are assembling to redress grievances),” Robinson wrote. “From a strict enforcement standpoint, although well-intentioned on an emergency basis, the EO (executive order) is very broad and does not appear to meet strict scrutiny – this is not to mention the EO appears to be beyond the framework of the specific Act is cites as support.”
On April 23, two days after that memo was written, Pritzker announced his intention to extend the state’s stay at home order to May 30. The current order is scheduled to expire April 30.
Pritzker said the extension is needed to boost the state’s response to COVID-19, and to save lives. He said models created by scientists he is consulting have indicated the state’s COVID-19 “peak” is still weeks away, requiring broad societal restrictions to remain in place.
After the governor announced his intent to extend the shutdown orders for another month, that action was challenged in court, in a lawsuit filed by a southern Illinois Republican legislator.
In the lawsuit, filed in Clay County, State Rep. Darren Bailey, R-Xenia, argued the IEMA Act limits the governor to a 30-day emergency declaration, and does not allow him to then declare further 30-day declarations, stemming from the same emergency, “into perpetuity.”
The lawsuit asserts any further emergency powers would need to be authorized by the Illinois General Assembly, which has not convened since the governor declared a statewide emergency in March.
“It is past time for the legislative branch to act,” Bailey wrote.
The Illinois House of Representatives, run by House Speaker and chairman of the Illinois Democratic Party Michael J. Madigan, remains adjourned until further notice.
When asked about the lawsuit, Pritzker called it a “political maneuver” and said he has “relied on science and research and doctors and advice.” He said Illinois remains in a “disaster proclamation” and the state and the nation remain in a “state of emergency.” He said “we probably shouldn’t be dealing with politics” during the time of emergency.