Another legal opinion has surfaced indicating the Illinois Attorney General's office position has changed on the question of whether Gov. JB Pritzker has overstepped his authority in extending his emergency powers to govern by executive order beyond 30 days, without first securing approval of Illinois state lawmakers.
On May 13, the Edgar County Watchdogs, a downstate investigative blog, published a 2001 memorandum from a former senior staff member at the Illinois Attorney General’s Office.
The Illinois Emergency Management Act “clearly authorizes the Governor to exercise emergency powers for up to 30 days,” Luke wrote in the memo.
However, to allow an Illinois governor to simply continue to extend those emergency provisions, at whim, “would render the limitation clause meaningless,” Luke wrote.
“A more reasonable construction, taking into consideration the other provisions of the (IEMA law), is that the Governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.”
The memo was addressed to former Illinois Environmental Protection Agency Director Michael Chamness. At the time, it was to address the legal path forward, should the governor – Republican George Ryan, at the time – need to declare an emergency in response to an outbreak of hoof and mouth disease among livestock in the state.
Republican Jim Ryan served as attorney general at that time. He was succeeded by Democrat Lisa Madigan. She was, in turn, succeeded by Democrat Kwame Raoul, who currently serves in the office.
In recent court filings, however, Raoul has taken a completely opposite stance while defending Pritzker against legal challenges to his authority to continue to use emergency powers in response to the COVID-19 pandemic.
Pritzker has been sued on numerous fronts since moving to extend his so-called stay at home orders through the end of May.
Two state lawmakers – state representatives Darren Bailey (R-Xenia) and John Cabello (R-Machesney Park) – have sued Pritzker, asserting the governor needed to secure approval from the state legislature, rather than unilaterally extending his emergency powers decree.
Similar reasoning has underpinned some of the legal claims brought by churches and business owners, who asserted the governor has overstepped his authority in ordering churches and many businesses he deemed “non-essential” closed.
To date, the Democrat-dominated General Assembly has refused to convene. However, yesterday, Pritzker changed his position on whether the state lawmakers should meet, and called for a session to begin quickly. On Wednesday, May 13, reports were published indicating Illinois House Speaker Michael Madigan would call lawmakers back into session beginning May 20.
In defending against the various lawsuits, lawyers with Raoul’s office have argued execution of the state law isn’t limited to the written text of the Emergency Management Act. Rather, they argued, in disasters such as the COVID-19 pandemic, the governor should have the ability to unilaterally extend his emergency powers in 30-day increments, provided he make a “redetermination” the disaster continues every 30 days.
To this point, that reasoning has been accepted by a federal judge and a Cook County judge, who have both ruled Pritzker did not exceed his authority, and can continue governing by executive order, so long as the disaster continues. Cook County Judge Celia Gamrath specifically distinguished between “discrete” emergencies, such as earthquakes and tornado outbreak, and an infectious disease pandemic, which occurs over longer timeframes. She said the governor’s powers can’t be limited by the law to just 30 days during a pandemic, despite the actual language of the law.
However, those decisions also ignored an opinion from Illinois Deputy Appellate Prosecutor David Robinson, who earlier this year also told Illinois county prosecutors he does not believe the governor’s interpretation of the law squares with the law’s text.
Robinson’s take squares with the reasoning laid out by Luke in his opinion from 19 years earlier.
In that memo, Luke said the sections of the law that appears to limit the governor’s emergency powers to an initial 30 day declaration, to be followed by action from state lawmakers, lines up with the intent of lawmakers in other sections of the law.
For instance, in another section, the Illinois Emergency Management Act allows the governor to spend certain amounts of money “for emergency purposes” and to borrow to meets the needs of the state. However, those spending powers were limited “only ‘until such time as a quorum of the General Assembly can convene in regular or extraordinary session,’” Luke wrote.
“The purpose of this provision … is to empower the Governor to deal immediately with emergency situations,” Luke wrote. “Even though disaster situations could require remediation for a period long in excess of 30 days, normal governmental processes, including legislative action, can be set in motion to meet such needs within 30 days of the occurrence.”
Pritzker had first declared a statewide disaster and invoked his emergency powers in early March. He has since cited the Illinois Emergency Management Act and extended his powers twice.
In their report, the Edgar County Watchdogs pointed out Luke’s memo was also cited several times in an Illinois Department of Public Health Legal Team Handbook, published in 2003. That document specifically references the Attorney General’s Office’s position that the governor’s emergency powers are limited to 30 days, without action by the General Assembly.
The document does not draw a distinction between “discrete” emergencies and ongoing emergencies, such as the COVID-19 pandemic.