A suburban state's attorney has joined his name to the growing list of those questioning Gov. JB Pritzker's use of emergency powers amid the COVID-19 pandemic, particularly criticizing the Illinois Attorney General for embracing a legal position that could leave Illinois under the rule of one man for years and treats Illinois citizens and businesses as “state resources.”
On May 15, McHenry County State’s Attorney Patrick D. Kenneally filed a brief in Chicago federal court, to add his opinion to the legal challenge brought by State Rep. John Cabello (R-Machesney Park).
Cabello had filed suit in Winnebago County Circuit Court in Rockford, asserting Pritzker had violated state law and the rights of Illinoisans when he issued and extended his so-called stay at home orders. Those orders, issued as the centerpiece of his actions to combat the spread of COVID-19 in the state, grouped Illinois businesses, organizations and activities into two categories, essential and “non-essential.”
Under the orders, all businesses deemed non-essential were ordered closed, and all non-essential activities prohibited.
Cabello, however, said the governor lacked that authority under the Illinois Emergency Management Act. He pointed to the law’s text, which expressly restricts the governor’s use of emergency powers to a 30-day period following his declaration of a disaster. After that, Cabello said, the governor needs to win approval from the Illinois General Assembly to continue using his powers.
Pritzker and his political ally, Illinois Attorney General Kwame Raoul, have argued, however, that the law should be interpreted to allow the governor to essentially redeclare an emergency every 30 days, allowing the governor to use his emergency powers for as long as he believes the condition that caused the disaster remains.
In this case, Pritzker said, the ongoing nature of the COVID-19 pandemic should allow him to continue to rule by executive orders, regardless of what the General Assembly may say.
Pritzker and Raoul removed the case from Winnebago court to federal court earlier this month.
As U.S. District Judge Henry D. Lienenweber prepares to take up the case, other interested parties have the opportunity to weigh in, through so-called amicus, or friend of the court, briefs. Those briefs are designed to help a judge weigh the merits of particular positions and issues in the case.
Kenneally filed such an amicus brief.
In his brief, Kenneally specifically noted he is not officially opposing Pritzker’s stay at home order, and will continue to enforce it. Other prosecutors and sheriffs elsewhere in the state have indicated they won’t enforce the orders in their counties.
Kenneally, however, said he still believes Pritzker’s actions may be illegal.
He particularly criticized Raoul’s arguments to support the governor, calling out the Attorney General’s “anemic rationalization … for the Governor’s continued appropriation of ‘emergency powers.’”
Keneally particularly expressed concern over the precedent that would be set should courts allow Pritzker to continue to grant himself broad, sweeping emergency powers for as long as he believes it necessary to do so.
“The Attorney General’s position is essentially that the court should set the precedent that an Illinois governor may - with no check, identifiable criteria, formal deliberation, or process – unilaterally consider and evaluate the reports and data germane to the question of whether a disaster exists and single-handedly determine the necessity for a proclamation indefinitely,” Kenneally said.
“While we appreciate the fact that a disaster must be ‘declared’ every 30-days, such a declaration, which requires merely the wave of a pen and rests solely on the conscience and judgment of one individual, is little more than a formality.”
In this crisis, Kenneally said, COVID-19 may remain a threat to the health of Illinoisans for years.
Under the reasoning laid out in the governor’s executive orders, and the legal reasoning expressed by Raoul in defending Pritzker’s powers, Illinois could remain effectively under the rule of one man for as long as COVID-19 poses a threat.
“It would be no small affront, absurdity, or injustice to our constitutional form of government to interpret the Act to permit over 13 million Illinoisans to essentially live under the reign and decision-making of one individual for that period preceding the availability of a vaccine,” Kenneally wrote.
The state’s attorney also assailed Pritzker’s assertion the Illinois Emergency Management Act gives him the power to close as many businesses as he deems fit, and potentially confine all residents of the states to their homes, in the name of public health.
Pritzker and Raoul point to language in the Emergency Management Act giving the governor the power to “use available resources of the State government.”
But the property and livelihoods of Illinois residents don’t fit in that definition, Kenneally said.
“While there is obvious wisdom in permitting the Governor in times of emergency to use the available resources of the State government, the lives and operations of businesses in Illinois are not ‘State resources’ to be suspended or shuttered until further notice,” Kenneally wrote.
While noting neither the governor nor any other state officials have suggested “interning” Illinoisans’ in camps, Kenneally said Pritzker’s and Raoul’s interpretation of the law would certainly not forbid that.
And the state’s attorney said the governor’s position, that the COVID-19 pandemic presents a crisis that requires “summary measures, which are not found in the text of the laws,” is a “chilling argument” that raises “the specter of a ‘constitutional crisis,’ that the Governor ‘inherently’ need not follow the law.”
:The wisdom of the statute is in its simplicity,” Kenneally wrote. “The Executive (the governor) must have the capacity to respond immediately to an emergency without being slowed by the more gradual legislative process.
“However, the Executive is not thereafter altogether freed entirely from the checks, sage advice, and consent of the People’s representatives for as long as he deems appropriate.”
Kenneally further said the governor’s executive orders also run afoul of the U.S. Constitution and its protections of religious, speech and assembly rights.
While he doesn’t dispute some aspects of Pritzker’s orders could be considered constitutional, much of the orders – provisions he calls “unreasonable and arbitrary” - fall short, the state’s attorney said.
“The Attorney General’s argument that stores like Menards and Walmart are truly ‘essential’ in the ordinary, as opposed to legal, sense because they provide the ‘day-to-day infrastructural needs of a society…purchase food to eat, supplies to maintain their residences, and pharmaceuticals to stay healthy’ betrays a hidden undervaluation of religion, human interaction, and speech,” Kenneally wrote.
“The Attorney General here is on dangerous ground.”