April 28, 2020
By Jacob Huebert

An Illinois judge has issued a temporary restraining order blocking the state from enforcing Governor J.B. Pritzker’s stay-at-home order—at least against one person, State Representative Darren Bailey.

Bailey filed a lawsuit on Thursday, April 23, asking the court to declare the stay-at-home order unlawful and prohibit state officials from enforcing against him. On Monday, the court granted the temporary restraining order, concluding that Bailey is reasonably likely to succeed in the case and that, without court intervention, he would be irreparably harmed because his right to travel freely outside his home would be violated.

Bailey’s legal argument is simple. Illinois’s Emergency Management Act allows the governor to declare an emergency and then exercise extraordinary, far-reaching powers—but only for 30 days. Pritzker declared a state of emergency in response to COVID-19 on March 9—which means his emergency powers, and any orders he issued under them, should have expired on April 8. But Pritzker issued a new proclamation on April 1, supposedly extending the emergency and his powers under it to April 30. And last week, he announced that he would be issuing yet another order on May 1, extending the emergency, including the stay-at-home order, through May 30.

Some might argue that the 30-day limit shouldn’t apply because the coronavirus pandemic is an ongoing problem. But the Illinois legislature could have accounted for that circumstance in the law—and it didn’t. Presumably legislators considered various options—different states set different rules and expirations for emergency orders—and then deemed 30 days enough time to allow the governor to immediately and flexibly address urgent needs, and enough time to allow the legislature to address any problems that would extend beyond 30 days.  

Like similar laws in other states, Illinois’ Emergency Management Act grants the governor extraordinary, but temporary, power to suspend or modify state laws to respond to a disaster. But one law a governor should never be allowed to change–besides the state constitution–is the law that gives the governor emergency powers in the first place. An emergency can’t justify ignoring the limits in such a law because very purpose of the law is to determine what the governor can–and cannot–do when there’s a severe statewide emergency. For the governor to go beyond the statute’s limits violates not only the statute but also the constitutional separation of powers.

Reasonable people can disagree about how best to respond to the coronavirus pandemic. But it should be beyond dispute that governors exercising their emergency powers must act within the constraints the law and the Constitution impose on them.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.

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