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 On
Oct. 16, Gov. J.B. Pritzker issued his ninth disaster proclamation citing the
COVID-19 pandemic, again extending his emergency powers on his own authority.
At the end of this proclamation’s 30-day period, the governor will have claimed
emergency powers to deal with the COVID-19 pandemic for almost 250 consecutive
days. Under these powers, the governor has issued orders limiting the operation
of shops, bars and restaurants, restricting in-person gatherings, closing
schools and mandating the wearing of masks, to name just a few.
The governor’s emergency powers stem from the Illinois Emergency Management
Agency Act, which limits the exercise of emergency powers to 30 days after a
disaster proclamation is made. Pritzker has claimed he can extend his emergency
powers indefinitely by continuing to issue new disaster proclamations as they
expire. The Act is silent as to whether the emergency powers can be renewed in
that way, and the Illinois General Assembly has not stepped in to clarify with
new legislation.
Pritzker’s authority to continuously extend his emergency
powers is being challenged. Illinois state Rep. Darren Bailey, R-Xenia, filed a
lawsuit claiming Pritzker had overstepped his authority. In July, a Clay County
judge struck down Pritzker’s extended executive orders as void. Pritzker was
unable to appeal that ruling because the judge did not make a final ruling on
all issues in that case, but the governor was able to consolidate Bailey’s case
with other challenges in the circuit court in Sangamon County.
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Pritzker then attempted to vacate the Clay County
decision on his emergency powers, arguing that Clay County did not
have jurisdiction over the case when the judge made his decision.
The Sangamon County court denied Pritzker’s motion on Oct. 19. The
court determined the governor could challenge the lawsuit on its
merits, but not on the basis of a lack of jurisdiction.
The Illinois General Assembly could render moot the challenges to
Pritzker’s emergency powers extensions by passing legislation that
clarifies or limits those powers. So far state lawmakers have
declined to do so.
Most states have not allowed emergency powers to last indefinitely.
Emergency executive powers are meant to allow the governor to
quickly address a disaster in a way that a deliberative body such as
the General Assembly simply cannot. But as the sudden emergency
becomes a longer-term problem, the legislature should deliberate to
come up with a response with input from a variety of viewpoints for
long-term and collaborative solutions.
The governor was not meant to rule by executive order and emergency
powers forever. But for now in Illinois, Pritzker has decided to
govern that way as the legal challenges work their way through the
courts.
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