A shot has been fired against Governor Pritzker’s Stay-at-Home Order. State Representative Darren Bailey filed a lawsuit against the governor, seeking a restraining order against the statewide order to stay home. This comes on the heels of protests in other parts of the country against governors’ powers.

I’m not going to wade into the debate as to whether we should stay home or reopen the economy (I do plan to write about what reopening might look like. Hint: not like it did before). However, I do want to discuss the governor’s powers and what possible limitations exist.

The Law

The statute that Pritzker’s orders are based on is 20 ILCS 3305/7, Emergency Powers of the Governor. This statute relates only to Illinois. I cannot vouch for any other state. The statute allows the governor to declare a state of emergency for 30 days. During those 30 days, the governor acquires a bunch of powers including suspension of state business, utilization of resources for emergency response, possession of private personal property, and the organization of evacuation.

The main item that people are focusing on is the 30-day limit. There is nothing in the statute that prevents the governor from issuing multiple states of emergency, nor is there any language expressly permitting it.

The Order

Governor Pritzker has issued multiple orders in relation to the COVID-19 pandemic. The most recent was issued on April 27 and extended the stay-at-home order until May 30.

The first disaster proclamation was issued on March 9. That was set to expire on April 7, but the governor extended it on April 1, lasting until April 30.

The current order requires the wearing of face masks in public. It also allows essential stores (of which there are many) to open but provide face masks to all employees, allow only 50% occupancy, and set up one-way aisles. Non-essential stores may offer curbside pick-up and drop off, and manufacturers may operate with face coverings and staggered shifts.

There are also requirements for staying at home, but with pretty liberal exceptions and little to no enforcement.

Essentially, this is the same order we lived with for April with some new exceptions that appear to be lifting some of the original restrictions. Though, in practice, it appears that day-to-day life will be roughly unchanged.

The Challenge

State Representative Darren Bailey of Xenia, Illinois attacked the stay-at-home order, claiming that the governor exceeded his authority.

Bailey said in a statement about the lawsuit, “Enough is enough! I filed this lawsuit on behalf of myself and my constituents who are ready to go back to work and resume a normal life.”

The local court agreed with Bailey and issued a temporary restraining order in his favor, but the court limited the restraining order to only Bailey. Everyone else is still subject to the order. Now other lawmakers are also filing suit.

This issue will most certainly head to the Illinois Supreme Court. I can find no case law that would provide any guidance as to what the Court can or will do. I do know that Pritzker has previously issued back-to-back declarations of emergency in 2019 for severe flooding that affected parts of the state. We are in our third month of this executive order. I don’t know if we have hit a “limit” of Pritzker’s power.

My Thoughts

The governor has a couple of things going for him. First, he has issued back-to-back orders previously so there is precedent for this kind of behavior. It doesn’t make it right, but the Court will certainly consider how other emergencies have been handled.

Second, these are unprecedented times. Just like how many laws and orders were allowed following 9-11, we are seeing unusual extensions of powers and laws. Again, that doesn’t make it right. And, in fact, some of the policies adopted after 9-11 were ultimately considered to be oversteps. It’s hard to imagine what the Court will do given the current never-before-seen pandemic.

Working against the governor is that he is not the appropriate governing body for long-lasting decisions. The legislation is the proper governmental unit to make widespread decisions. The purpose of the emergency rules is to allow the governor to make decisions while the legislature starts planning for long-term handling of a problem. Arguably, this is an overstep from Pritzker. Why Representative Bailey is seeking help through the Court rather than his own legislative body, I don’t understand. Perhaps he doesn’t feel anything needs to be done in the face of over 2,000 deaths. I cannot say.

What Will a Reopening Look Like?

I plan to write on this in the future (stay tuned!) so I won’t go into a lot of details now, but suffice to say that our world will not go straight back to ‘normal’ once these restrictions are lifted. There is still a serious health emergency happening, and reopening the economy without restriction will not address the public’s very real fears.

I’m sure many businesses would love to reopen, but simply opening your doors will not guarantee a return of customers. How long will it be until people return to restaurants? Hotels? Movie theaters? I don’t think this issue is as binary as some would want you to believe. The economy will not likely be ‘on’ or ‘off’, rather I think we will see a gradual rebuilding in line with the reasonable fears of the public.

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