Southern Illinois state lawmaker Darren Bailey has pledged to continue his legal pursuit of a court order ending Gov. JB Pritzker’s stay at home order, which Bailey and others have argued is illegal and unconstitutional.
Last week, the Illinois Fifth District Appellate Court, acting at Bailey’s request, vacated a temporary restraining order that a Clay County judge had entered in his favor, essentially barring Pritzker from enforcing his stay at home order against Bailey, individually.
Bailey, a Republican state representative, of Xenia, and a farmer, was already designated as an “essential” worker under Pritzker’s order, and could travel to conduct business.
However, Bailey had sued Pritzker the week before, challenging the governor’s authority under state law and the constitution to issue and enforce the so-called stay at home order through the month of May.
Pritzker had imposed a stay at home order in March, several days after declaring a disaster in Illinois over the outbreak of the novel coronavirus that causes COVID-19. Pritzker said the stay at home order, which resulted in mass closure of businesses, churches and other institutions, was needed to tamp down the spread of COVID-19.
Pritzker has since credited the stay at home order with greatly reducing the number of COVID-related deaths in Illinois, particularly when compared to initial projections.
However, Bailey and other critics of the orders have blamed those shutdown orders, implemented in Illinois and other states, for cratering the American economy, resulting in massive unemployment unseen since the Great Depression.
Bailey and others have asserted Pritzker’s order is illegal, as it exceeds his mandate under the Illinois Emergency Management Act. They argue the law restricts the governor to exercising emergency powers for 30 days. Beyond that, Bailey and others have argued, the governor must secure permission from the Illinois General Assembly. State lawmakers have not convened in session since Pritzker declared the state of emergency in March.
Bailey initially secured a restraining order from Clay County Judge Michael McHaney in late April, days before Pritzker was set to extend the stay at home order from April 30 to the end of May.
Pritzker, through the Illinois Attorney General’s Office, appealed to the Fifth District Appellate Court in Mt. Vernon, and also petitioned the Illinois Supreme Court to take up the case directly. The governor argued his powers to declare emergencies are open-ended, provided he make a redetermination an emergency exists every 30 days.
Before either court of appeals made a decision, Bailey asked the appellate court to vacate the restraining order.
He and his attorney Tom DeVore later explained they decided to give up the restraining order to present a more full case to the appellate courts in the days to come. DeVore said he and Bailey were concerned the courts would rule on a narrow question related to the restraining order, rather than on the actual merits of their case related to their constitutional and statutory claims.
“He (Bailey) doesn’t want any distractions,” said DeVore, in a video posted to one of Bailey’s Facebook pages. “He wants the higher courts to hear it all, and he didn’t want to take away from the real issues.”
DeVore and Bailey also said they intended to petition Bailey’s local county health department for exclusion from the governor’s order. They noted the Illinois Department of Public Health issued notices of the governor’s order to county health departments and other bodies across the state. The notices included language tucked away at the end, explaining how Illinois residents can compel the state and the local health department to prove they are a public health risk, and obtain a court order specifically enforcing the governor’s order against them.
That notice, which included the only known explainer for how Illinois residents can exercise their rights to due process under the notice, was not distributed to the Illinois residents the governor asserts he has the power to order to stay at home, DeVore said.
Bailey and DeVore said they felt compelled to make sure the public understand they are not withdrawing the legal action.
They said the health board petition would also become a part of their case in court.
Since beginning their legal action, DeVore noted other Illinoisans have been inspired to challenge Pritzker’s emergency powers, in court and in growing protests.
State Rep. John Cabello (R-Machesney Park) also partnered with DeVore to file suit in Winnebago County court in Rockford, challenging Pritzker on behalf of all Illinois residents. And a church in Stephenson County in northwest Illinois sued Pritzker in federal court, asserting the orders infringe on religious liberty.
“Everyone is standing up, making a difference,” Bailey said. “We as Americans have to stand up. And we stood up, and asked a question, and we are full steam ahead.”