Following the rise of the COVID-19 pandemic, all branches of government and administrative bodies have grappled with how to address the health and economic threats posed by the virus, while staying within the bounds of their rule-making authority and powers. A recent example is the attempt by the Illinois Workers Compensation Commission (IWCC) to address the compensability of COVID-19 cases by promulgating an emergency rule. As discussed here, that decision resulted in a civil suit and entry of a temporary restraining order (TRO) based on the likelihood the IWCC exceeded its rule-making authority. That led the IWCC to withdraw the rule and consider another way to address the issue.
Now, Illinois Governor J.B. Pritzker’s most recent “stay-at-home” orders are under similar scrutiny. On April 23, 2020, Illinois state Representative Darren Bailey (R-Xenia) filed suit against Governor Pritzker in the Circuit Court for the Fourth Judicial Circuit (Clay County, Illinois.) Mr. Bailey’s complaint seeks a declaration that the March 20, 2020 Executive Order lapsed as of April 7, 2020, that any attempt to extend the stay-at-home order past April 8, 2020 exceeded the Governor’s powers, and that any future attempts to extend the Executive Order are void ab initio. The complaint also includes a request for a permanent injunction seeking similar relief and barring the enforcement of any stay-at-home order against Mr. Bailey. A request for entry of a TRO accompanied Mr. Bailey’s complaint.
Governor Pritzker, through the Illinois Attorney General’s office, filed a motion to dismiss Mr. Bailey’s complaint with prejudice on April 27, 2020. The motion also argued Mr. Bailey failed to make the necessary showing to support entry of a TRO.
On April 27, 2020, Judge Michael D. McHaney heard argument and granted Mr. Bailey’s request for a TRO. The complaint, motion to dismiss, and related memoranda can be found here. Judge McHaney’s order granting the TRO can be read here.
Why Does Representative Bailey Claim that Governor Pritzker’s March 20, 2020 Executive Order Exceeds his Authority and is Unenforceable?
Mr. Bailey’s argument that Governor Pritzker exceeded his authority by extending the stay-at-home order past April 8, 2020 is based on the following: 1) provisions of the Illinois Constitution assigning powers to the Executive and Legislative branches; 2) Section 7 of the Illinois Emergency Management Agency Act (Emergency Act), 20 ILCS 3305/7; and 3) Section 2 of the Illinois Department of Public Health Act (Public Health Act), 20 ILCS 2305/2. It is important to note that Mr. Bailey’s submissions seek relief only for him personally.
In his initial submissions, Mr. Bailey acknowledged that Governor Pritzker appropriately issued a “disaster proclamation” based on the COVID-19 pandemic on March 9, 2020. Mr. Bailey does not dispute that Section 7 of the Emergency Act permitted Governor Pritzker to issue the initial stay-at-home order on March 20, 2020. Mr. Bailey instead takes issue with the Governor’s attempt to extend that order past April 8, 2020 and declare a “continued disaster” to effectuate an extension of his emergency powers.
As evidence that any extension past April 8, 2020 exceeds the Governor’s authority, Mr. Bailey points to Section 7 of the Emergency Act, which provides in part:
Sec. 7. Emergency Powers of the Governor. In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers. . . .
20 ILCS 3305/7 (emphasis added). According to Mr. Bailey, the plain text of the Emergency Act limits the Governor’s emergency powers to 30 days following the event of a disaster. Since Governor Pritzker declared a disaster based on COVID-19 on March 9, 2020, Mr. Bailey posits those emergency powers expired on April 8, 2020 and that any attempt to extend emergency powers past April 8, 2020 (including the subsequent Executive Orders extending the stay-at-home period past that date) exceeds Governor Pritzker’s powers and rights under the Emergency Act.
According to Mr. Bailey, if the Governor can declare a “continued disaster” repeatedly, he can extend his emergency powers in perpetuity and render the Emergency Act’s 30-day limitation meaningless. Mr. Bailey argues that, if the General Assembly contemplated allowing the Governor to exercise emergency powers in excess of one 30-day period, it would have included that language in the Emergency Act. Until it does so, Mr. Bailey argues he has the right to limit the Governor’s emergency powers to 30 days following the initial disaster declaration.
In a supplemental submission that somewhat changes his initial position, Mr. Bailey argues that the Public Health Act also supports the conclusion that Governor Pritzker has exceed his authority. Section 2(a) of that statute provides in part:
Sec. 2. Powers.
(a) The State Department of Public Health has general supervision of the interests of the health and lives of the people of the State. It has supreme authority in matters of quarantine and isolation, and may declare and enforce quarantine and isolation when none exists, and may modify or relax quarantine and isolation when it has been established. The Department may adopt, promulgate, repeal and amend rules and regulations and make such sanitary investigations and inspections as it may from time to time deem necessary for the preservation and improvement of the public health. . . .
20 ILCS 2305/2(a)(emphasis added.) Reading this in tandem with the Department of Public Health’s “Illinois Pandemic Influenza Preparedness and Response Plan,” Mr. Bailey argues that Department of Public Health, not Governor Pritzker, has supreme authority in all matters related to quarantine. From there, he contends those terms support the conclusion the Governor exceeded his authority by even issuing the stay-at-home order in the first place, much less by his extension past the initial 30-day period following the disaster declaration.
How Did Governor Pritzker Respond?
Governor Pritzker immediately filed a motion to dismiss Mr. Bailey’s complaint with prejudice under Section 2-615 of the Illinois Code of Civil Procedure, which governs dismissal of a lawsuit for failure to state a recognized claim. Governor Pritzker’s motion, which argues that all of his actions to date addressing the COVID-19 pandemic are lawful, is premised on three main points.
First, the Governor argues the Emergency Act permits the Governor to retrigger the 30-day limit on his emergency powers if needed so long as he determines the disaster persists. In the inverse of Mr. Bailey’s argument, Governor Pritzker contends that the Emergency Act’s silence on this point in Section 7 should be interpreted to mean that extensions are permitted, so long as the Governor determines the disaster is ongoing. In support of this reading, Governor Pritzker’s motion includes a litany of previous occasions where Illinois Governors extended the 30-day period if needed (one of which was acknowledged favorably by Mr. Bailey in an earlier article.) Pritzker hence argues if the General Assembly had issue with the Governor extending his emergency powers past one 30-day period, it would have moved to amend the Emergency Act following one of these many other times.
In addition to past precedent and the language of Section 7, Governor Pritzker argues other sections of the Emergency Act support a renewed 30-day period for ongoing disasters. Specifically, the Governor points to Section 4, which defines a “disaster” to include all manner of disasters that could easily have a duration in excess of 30 days. The Governor also identifies Section 11, which limits a local municipality’s ability to continue or renew local disaster declarations. Based on those terms, the Governor argues that, if the General Assembly wanted to similarly constrain the Governor, it could have included similar language in Section 7. Along those same lines, Sections 6 and 9 of the Emergency Act include terms that involve the General Assembly in certain parts of the process. According to the Governor, if the General Assembly intended to participate in or limit the disaster declaration, it would have included similar language in Section 7.
Governor Pritzker also cites to the Court’s own acquiescence to the extension of the stay-at-home order as evidence it is lawful. Finally, the Governor points out, while Mr. Bailey’s complaint focuses on the stay-at-home portion of the Executive Order, Governor Pritzker has used the emergency declaration to effectuate all manner of actions to address the pandemic. According to the Governor, Mr. Bailey’s arguments jeopardize all actions taken pursuant to the emergency powers, thus posing a serious threat to all Illinois residents.
Second, Governor Pritzker argues that the powers assigned to him by the Illinois Constitution, particularly application of the State’s police power and the Executive’s emergency power to respond to a pandemic, render the extension of his emergency powers lawful. In support of the constitutionality of his conduct, Governor Pritzker points to Article V, § 8 of the Illinois Constitution, which grants him “supreme executive power, and [he] shall be responsible for the faithful execution of the laws.” Based on this text and interpretative decisions, the Governor argues this Article gives him the constitutional authority to take actions to protect public health.
In terms of how his constitutional powers fit with the terms of the Emergency Act, the Governor cites to Section 3(d), which expressly states that nothing in the Emergency Act should be interpreted to limit the Governor’s constitutional powers. Reading that section through the lens of his argument for expansive emergency and police powers in the face of a public health emergency, the Governor concludes that the Emergency Act does not limit his right to extend emergency powers as needed.
In support of the constitutionality of his conduct, the Governor notes the General Assembly has done nothing to prohibit his conduct to date and argues that there is no specific law prohibiting any of his conduct. To the contrary, Governor Pritzker argues that the unprecedented public health emergency posed by the COVID-19 pandemic, combined with his constitutional powers, mandate that he be able to take whatever steps are needed to protect the health and safety of Illinois residents. According to Governor Pritzker’s argument, while his conduct is consistent with the Emergency Act, to some extent that statute is irrelevant because his grant of emergency powers comes directly from the Illinois Constitution and is appropriate given the unique and serious circumstances posed by the COVID-19 pandemic.
Third, the Governor argues Mr. Bailey’s citation to the Public Health Act does nothing but confuse the core constitutional questions and application of the Emergency Act. The Governor argues Mr. Bailey’s substantive arguments based on the Public Health Act do not apply because the stay-at-home order, which allows Mr. Bailey some freedom of movement, does not amount to a quarantine order. Governor Pritzker also points to various sections of the Public Health Act that he argues make plain that the Act does not limit the Governor’s powers under the Emergency Act and illustrate that the two statutes operate separately, as opposed to the Public Health Act superseding the Emergency Act.
Governor Pritzker also argues that, if the Public Health Act is read in the way Mr. Bailey requests (i.e. vesting the right to effectuate quarantine orders with the Department of Public Health only), a serious constitutional problem would be triggered by removing the Governor’s executive authority to protect the public and transferring that power to the Director of the IDPH. Taking this point in conjunction with the text of the two statutes, Governor Pritzker concludes that entertaining Mr. Bailey’s reading of the Public Health Act violates the Illinois Constitution.
In addition to seeking dismissal of Mr. Bailey’s complaint, Governor Pritzker’s motion also includes argument that the request for entry of a TRO should be denied, namely because Mr. Bailey provided no evidence he would suffer irreparable harm if required to abide by the stay-at-home order. Governor Pritzker also argues that balancing the equities at stake tips towards the need to protect the health of all Illinois residents, not to grant Mr. Bailey’s request for emergency relief.
What Was Judge McHaney’s Ruling?
On April 27, 2020, Judge McHaney heard argument from both sides on Mr. Bailey’s request for entry of a TRO and granted the request. Note that, while Judge McHaney’s current ruling only imposes a temporary limitation on the enforcement of the stay-at-home order against Mr. Bailey, his ruling was based on the conclusion that Mr. Bailey had a reasonable likelihood of success on the merits of his claims (i.e. Mr. Bailey would ultimately be able to demonstrate Governor Pritzker exceeded his authority by extending the stay-at-home order past the original 30-day period.)
Judge McHaney’s ruling is exclusive to Mr. Bailey as the named plaintiff. In his order, Judge McHaney specifically noted “Plaintiff has shown he has a clearly ascertainable right in need of immediate protection, namely his liberty interest to be free from Pritzker’s executive order of quarantine in his own home.” Judge McHaney ordered that Governor Pritzker is enjoined from enforcing his March 20, 2020 order against Mr. Bailey by forcing him to isolate and quarantine in his home and is also enjoined from entering similar orders against Mr. Bailey.
Since Judge McHaney’s ruling was based on the request for a TRO, his order will expire on a date to be agreed on by the parties, not to exceed 30 days from April 27, 2020. Then, the Court will consider the substantive merits of the suit, including Mr. Bailey’s request for a permanent injunction based on the reasons detailed above.
Based on the ruling, Mr. Bailey is presently free to disregard any extension of Governor Pritzker’s stay-at-home order. While the ruling only exempts Mr. Bailey, supporters of the Governor’s right to extend to the stay-at-home order have voiced concerns it will lead to multiple similar suits, weaken the effectiveness of the efforts to contain the spread of COVID-19, and deprive the Governor of constitutional powers. Others see Judge McHaney’s decision as a much-needed check on executive authority and affirmation that personal liberty is preserved, even if there is a public health crisis that creates an emergency.
On the evening of April 27, 2020, Governor Pritzker filed a notice of appeal of Judge McHaney’s ruling with the Illinois Appellate Court, seeking reversal of Judge McHaney’s ruling and a dissolution of the TRO. Given the time-sensitive nature of the issues, the appeal is expected to be heard on an expedited basis.
We will continue to monitor this matter and provide updates as the appeal progresses.