Illinois Cultural Issues

Front Page Article

Governor Pritzker’s Perpetual Usage of Emergency Powers
By Joyce Geiler

This week the attention of many Illinoisans is rightly turned to the primary election. Forgotten, or at least relegated to the back burner, are the months of Covid-related restrictions and hardships. One topic, however, ties the two together. The man who has exerted emergency powers over the state regarding the Covid pandemic for more than two years, 65% of his term, is running for re-election. The Democratic primary has only one challenger to Pritzker’s governorship. The Republican field has six candidates from which the challenger will be chosen in the primary election. During the run-up to the primary election, Pritzker has touted his administration’s handling of the COVID-19 pandemic. This article will review that handling.

Every 30 days since March 9, 2020, the Governor has issued an emergency proclamation giving himself emergency powers. The emergency? The Covid-19 pandemic. Each emergency proclamation must be filed with the Secretary of State and then becomes immediately effective. The most recent extension of the emergency proclamation for the next 30 days was filed with Secretary of State, Jesse White, on May 27, 2022. That makes 26 months of Governor Pritzker operating with emergency power authority.

The Illinois Emergency Management Agency Act, Sec. 7. Emergency Powers of the Governor states: “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.” (1) Within the wording of this act, a long list of emergency powers is delineated but nothing is written about limiting the time period or about extending the emergency powers.

In the most recent extension of emergency proclamations filed with the Secretary of State May 27, 2022 the Gubernatorial Disaster Proclamation begins:
“WHEREAS, since early March 2020, Illinois has faced a pandemic that has caused extraordinary sickness and loss of life, infecting over 3,280,000, and taking the lives of more than 33,700 residents; and, “WHEREAS, protecting the health and safety of Illinoisans is among the most important functions of State government; and, “WHEREAS, as Illinois continues to respond to the public health disaster caused by Coronavirus Disease 2019 (COVID-19), a novel severe acute respiratory illness that spreads rapidly through respiratory transmissions, the burden on residents, healthcare providers, first responders, and governments throughout the State continues to be unprecedented.”

After 6 pages of ‘whereas’ and over a page of ‘therefore’, the conclusion states:
“Section 1. Pursuant to the provisions of Section 7 of the Illinois Emergency Management Agency Act, 20 ILCS 3305/7, I find that a disaster exists within the State of Illinois and specifically declare all counties in the State of Illinois as a disaster area. The proclamation authorizes the exercise of all of the emergency powers provided in Section 7 of the Illinois Emergency Management Agency Act, 20 ILCS 3305/7, including but not limited to those specific emergency powers set forth below.” (2) The powers set forth in the law are then listed.

Everyone in the state has experienced some aspect of the Governor’s emergency mandates. A comparison of the number of pre-pandemic executive orders signed by Governor Pritzker with the number of orders since Covid began helps highlight their use. There were thirteen executive orders in 2019, 75 in 2020, 32 in 2021, and thirteen so far in 2022, an increase of five times at the height of the pandemic. (3)

Emergency powers are granted to governors in times of dire need, such as when the country is grappling with a deadly disease. They allow governors to act quickly, rather than awaiting a legislature that is designed to be slow and deliberative. Currently, the only limit on the governor’s authority comes from the Illinois Emergency Management Agency Act, which limits Pritzker’s disaster proclamations to 30 days. But Pritzker has renewed his emergency powers 26 times after prior proclamations expired – seeking neither approval nor input from the General Assembly. (4)

As of June 10, 2022, fourteen states still have some type of emergency mandate regarding Covid-19 and at least 34 states have some sort of legislative check in place for the duration of emergency executive powers. Twenty-two states empower state lawmakers to end a state of emergency by resolution at any time, while 12 states require state legislatures to approve any extension of emergency declarations. (5) Even if the Illinois state legislature wanted to limit the governor’s extension of emergency powers, it would need either cooperation from the governor or a veto-proof majority for the legislation to pass.

Several lawsuits challenging Pritzker’s authority to extend the 30-day limit on a disaster declaration have been initiated. In April of 2020, Clay County judge granted State Rep. Darren Bailey a temporary restraining order based on the argument that a governor cannot extend his emergency powers past the 30-day limit set by statute. Bailey afterward asked the judge to vacate that order so he could file an amended lawsuit, which he did. Another state representative and 80 business owners also filed lawsuits, challenging Pritzker’s ability to limit their liberties beyond 30 days after the initial disaster declaration.

During that time period, the Illinois General Assembly held a short session to pass a spending plan for fiscal year 2021; however, lawmakers did not amend the Illinois Emergency Management Agency Act to explicitly allow the governor to extend the 30-day limit on his emergency powers. A requirement in the Illinois Constitution states any amendment to a section of code be made explicitly and the lawmakers did not do so. (6)

On July 2, 2020, Clay County Circuit Court Judge Michael McHaney granted two of three counts of the motion for summary judgment made by State Rep. Bailey’s lawsuit against Pritzker’s exercise of emergency powers. However, in a statement to the Chicago Tribune, Pritzker spokesperson Emily Bittner responded that other courts have sided with the governor on the exercise of his emergency powers. “Every other court – both state and federal – that has considered these exact issues has agreed with the administration that executive orders protecting Illinoisans’ health and safety are well within the governor’s constitutional authority,” Bittner said. (7)

Subsequently, the Illinois Supreme Court removed the action from Clay County to Sangamon County (where Springfield is located). Then Pritzker filed a motion in Sangamon County for reconsideration of the July judgment against him. And in December 2020, a Sangamon County judge granted Pritzker’s motion and held that Pritzker did have the authority to issue COVID-19-related executive orders for more than just one 30-day period of time. The court held that the Illinois Emergency Management Authority authorizes the Governor to issue successive disaster proclamations stemming from one ongoing disaster. (8) It seems that other suits are lost somewhere in the never-never-land of the court system.

The governor’s authority to issue emergency orders would be restricted under legislation. Introduced in January 2021 by State Rep. Joe Sosnowski, R-Rockford. HB0210 IEMA-DISASTER PROCLAMATION would amend the Illinois Emergency Management Agency Act but the bill now sits in the Rules Committee where it has been for over a year. (9)

Emergency executive powers can be a necessary aspect of governing in times of crisis. But powers meant to deal with a disaster cannot be allowed to go on forever. Illinois has three branches of government, just as the nation does. Allowing power to remain solely in the executive branch prevents the checks and balances intended for our state government.

ENDNOTES:

1. https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=368
2. https://www.illinois.gov/government/executive-orders.html
3. https://www.illinois.gov/government/executive-orders.html
4. https://www.thecentersquare.com/illinois/op-ed-illinois-should-join-neighbor-states-limit-pritzker-s-emergency-powers/article_033ca010-b440-11ec-bd82-9bdc4c983ee8.html
5. https://www.nashp.org/governors-prioritize-health-for-all/
6. https://madisonrecord.com/stories/539388185-despite-business-lawmaker-suits-pritzker-grants-himself-emergency-powers-for-4th-time
7. https://www.illinoispolicy.org/judge-strikes-down-pritzkers-covid-19-orders-extended-emergency-powers/
8. https://hlerk.com/pritzkers-executive-orders-were-legal-court-says/
9. https://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=HB&DocNum=210&GAID=16&SessionID=110&LegID=128074