UPDATE: This article was revised from an earlier version to include comments from Gov. JB Pritzker and State Sen. Bill Cunningham regarding possible legislation related to the withdrawn IDPH emergency rule.
A controversial new emergency rule, which had been proposed by Gov. JB Pritzker, and which could have resulted in fines and possible jail time for business owners who reopen their business sooner than Pritzker would allow, has been repealed.
Representatives of the Illinois Department of Public Health confirmed the emergency rule filed in recent days had been withdrawn, moments before it had been set to go before a legislative review committee for a possible vote.
On Wednesday, May 20, the Joint Committee on Administrative Rules – a special Illinois legislative panel of 12 members split evenly between Democrats and Republicans from the Illinois House of Representatives and the Illinois State Senate – had been expected to take up consideration of the measure proposed by Pritzker’s IDPH.
Pritzker had said the rule was needed to make explicit what was already in state law, that any business owner deemed non-essential who reopened their business in defiance of the governor’s stay at home orders could be deemed to have committed a Class A misdemeanor offense, and could suffer the associated criminal penalties.
Those could include fines of up to $2,500 and up to nearly a year in jail.
However, the rule change sparked a furor across the state in the five days leading up to the meeting, after news of the rule change, which was filed late in the day Friday, broke over the weekend.
Lawmakers’ phone lines, and voicemail and email inboxes were flooded by Illinoisans stridently opposed to the proposed rule change. Most of those contacting the state lawmakers, and particularly those members on the JCAR, urged the JCAR to object to the rule change.
All six Republicans on the JCAR had voiced opposition. JCAR co-chairman State Rep. Keith Wheeler (R-North Aurora) called it an “abuse of emergency rulemaking.”
However, two Democrats needed to join their GOP colleagues in a vote to formally object to kill the proposed rule.
Rather than allow such a vote, Pritzker’s IDPH announced they were withdrawing the measure.
However, the governor and JCAR co-chair State Sen. Bill Cunningham (D-Chicago) said Democratic legislative leaders agree with the intent of the rule, and are working together on legislation to make the rule law, instead.
Pritzker said he believes his intent was not understood, and the new legislation would limit punishment for defying his executive orders to fines. There would be no further threat of imprisonment, the governor said.
Pritzker had introduced the proposed rule as the state appears poised to move into the next phase of his so-called “Restore Illinois” plan at the end of May.
Pritzker introduced the plan earlier this month, asserting it was the best way to gradually reopen the state’s economy out of statewide closures instituted under Pritzker’s stay at home order, which had been issued as the centerpiece of the state’s response to the COVID-19 pandemic. Pritzker said the plan, which opens the state economy in five phases, would save lives by allowing the state to monitor the spread of the COVID-19 novel coronavirus at various points in the process.
In the wake of Pritzker’s decision to extend the stay at home order through the end of May, and then his introduction of the 5-phase plan, opposition and resistance to his emergency powers have only increased across the state.
Many sheriffs and state’s attorneys have publicly stated they will refuse to enforce the order.
At the same time, Pritzker’s administration faces numerous lawsuits, asserting he has exceeded the bounds of his authority in claiming broad, sweeping emergency powers, trespassing on Illinoisans’ constitutional rights, and bypassing the Illinois General Assembly.
In response to the growing hostility to his emergency powers and executive orders, Pritzker’s tone has shifted, threatening business owners who open too soon with a loss of the state licenses they need to do business, essentially closing their doors for good.
He has also indicated he would do nothing to prevent his political allies among the state’s trial lawyers from suing businesses who resist his orders. Some of the state’s most prominent personal injury and class action attorneys have echoed that warning, saying they stand ready to “protect” Illinoisans from businesses that “open too soon.”
Despite the public uproar against his rules, Pritzker has defended them, saying he believed it was already a misdemeanor to defy his emergency orders. He said the rule creates a new level of enforcement that allows the state to stop short of costly business license revocations.
Business owners and Illinoisans opposed to the stay at home orders, however, did not back down from opposing the rule.
The Illinois Chamber of Commerce, for instance, called for a “better way forward,” encouraging Pritzker to withdraw the proposed rule and craft new guidelines based on as broad of a consensus among Illinois residents, business owners and government officials as possible.