Kane County Bar Association - JUSTICE IS OUR TRADITION June 2020 - College of Law
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Kane County Bar Association
JUSTICE IS OUR TRADITION June 2020
KCBA Organized 1858
kanecountybar.org
June 2020 • kanecountybar.org | 1
Governor Pritzker’s Executive Power Amid the
Coronavirus Pandemic
by Abdullah Ali
I. Introduction There are numerous other provisions of the Act that were
On March 20, Illinois Governor J.B. Pritzker issued an exercised by Governor Pritzker in order to curb the spread of
executive order which required residents to stay at home, COVID-19. The first stay-at-home order issued by the Governor
nonessential business and operations to cease operations, and was consistent with state and federal law. However, on Monday,
prohibited all public and private gatherings of any number April 27, Governor Pritzker issued a 30-day extension to the
of people occurring outside of a single household or family stay-at-home order.5 This resulted in a lawsuit by Rep. Darren
unit.1 This order, known as a “stay-at-home” order, changed Bailey who argued the extension went beyond the 30 days
the daily lives of Illinoisans for the foreseeable future. Places allowed under the Emergency Management Agency Act.6 The
of worship no longer held in-person services. Schools across Act is silent on whether the Governor may extend a disaster
the state shut their doors. Colleges and universities moved proclamation.7 As a result, Clay County Circuit Court Judge
to online instruction. Workers, other than essential workers, Michael McHaney granted a restraining order to temporarily
were required to work from home or were furloughed with or block extension of the stay-at-home order as applied to Rep.
without pay. All of this due to the coronavirus (“COVID-19”). Bailey.8 Governor Pritzker, upset after the ruling, stated “[t]
COVID-19 has caused the illness and death of people all over his ruling has put the people of Illinois at risk. I sincerely hope
the country. In response to the rapid spread of COVID-19, that this matter will be brought to a swift resolution so that we
many states issued similar stay-at-home orders to curb its can go back to placing our undivided attention on the work of
spread and ensure hospitals were not overwhelmed with sick keeping people safe.”9 Governor Pritzker vowed to appeal the
people. While most people appreciated the measures and ruling, and Attorney General Kwame Raoul would be getting
precautions instituted to protect the health and safety of involved to protect the stay-at-home order.10
citizens, there was a small contingent of people who argued A few days after the ruling in the lawsuit filed by Rep. Bailey,
the State was usurping individual freedom. This article will another state representative filed a lawsuit challenging
look at that claim. Specifically, this article will look at the legal Governor Pritzker’s extension to the stay-at-home order.11
authority Governor Pritzker had to issue the executive orders In this lawsuit, filed in Winnebago County Circuit Court by
he has issued, and this article will look at whether Governor Rep. John Cabello, the complaint alleged “all citizens similarly
Pritzker can further increase the restrictions already in place. situated are being irreparably harmed each and every day they
II. Governor Pritzker’s Executive Power continue to be restricted to their home and limited in their
activities” by the stay-at-home order.12 Unlike the previous
Governor Pritzker’s authority to issue the original stay-at- lawsuit, the lawsuit by Rep. Cabello is “on behalf of all citizens
home order and the many other executive orders he has issued of the State of Illinois similarly situated.”13 Additionally, a
since the beginning of this international pandemic comes church in Northwestern Illinois followed up these two legal
from the Illinois Emergency Management Agency Act (the challenges by filing a lawsuit in federal court challenging
“Act”).2 The Act allows the Governor a range of authority to the stay-at-home as a violation of the First and Fourteenth
coordinate state action in response to a disaster. Specifically, Amendments to the U.S. Constitution, as well as a violation of
Section 7 of this Act allows the Governor “to exercise the Illinois’ law and constitution.14 There is (as of the date of this
emergency powers authorized in the act for a period of up to writing) no decision yet on these two recent lawsuits.
30 days. State and local police can work together to enforce
orders given under these emergency powers.”3 Of the powers III. Where does the State’s authority come from?
in the Act is the authority “[t]o control ingress and egress to The authority which gives the state the power to enact the
and from a disaster area, the movement of persons within the Emergency Management Agency Act and other similar acts is
area, and the occupancy of premises therein.”4 derived from the Tenth Amendment of the U.S. Constitution.
22 | kanecountybar.org • June 2020
The Tenth Amendment states “[t]he powers not delegated to it states, “[t]he privilege of the writ of habeas corpus shall not
the United States by the Constitution, nor prohibited by it be suspended, unless when in cases of rebellion or invasion
to the States, are reserved to the States respectively, or to the the public safety may require it.”18 The authority to declare
people.”15 In effect, the Tenth Amendment gives states the martial law lies with the president by an ct of congress, and the
“police power” to protect the safety, health, and welfare of its governor of a state.19 In order for a governor to declare martial
citizens.16 The U.S. Constitution acts as a floor, not a ceiling law, authority for it must come from the state’s constitution.
for states. This allows state governments the authority to take The Illinois Constitution allows martial law
action to protect the safety, health, and welfare of its citizens so
Whenever there is a tumult, riot, mob or body of persons
long as the action does not infringe on a protected right under
acting together by force with attempt to commit a felony,
the U.S. Constitution. Consequently, this allows Illinois the
or to offer violence to persons or property, or by force or
authority to enact the Emergency Management Agency Act.
violence to break or resist the laws of the State, or when
Thus, Governor Pritzker, in his official capacity as the head of
such tumult, riot or mob is threatened it shall be deemed
state, is granted the authority to declare a state of emergency
that a time of public disorder and danger then exists, and it
and trigger use of the Act. By triggering the Act, Governor
shall be the duty of the Governor thereupon to order such
Pritzker was then able to issue the stay-at-home order which is
military force as he may deem necessary to aid the civil
allowable under the Act.
authorities in suppressing such violence and executing the
IV. Can Governor Pritzker enact measures more extreme law.20
than the stay-at-home order?
Based on this section of the Illinois Constitution, Governor
The foregoing discussion about the stay-at-home order issued Pritzker has the authority to declare martial law if there is
by Governor Pritzker and the legal authority for such an action unrest or the threat of unrest that constitutes a felony or
begs the question of whether there are more extreme measures will result in violence. Fortunately, there has been no unrest
the Governor can take. Assuming the stay-at-home order fails in response to the COVID-19 pandemic. In fact, Governor
to curb the spread of COVID-19, can Governor Pritzker require Pritzker addressed the rumors of martial law being declared
a lockdown? In order for there to be a complete lockdown, in Illinois by stating "[r]umors that there's going to be martial
martial law will likely need to be declared. Martial law is the law that's going to be imposed, that we've called out the guard
suspension of ordinary law with temporary military rule in a or the military somehow to impose their will upon the state of
time of crises.17 The term martial law is not specifically used Illinois. Those are all false.”21 Governor Pritzker was addressing
or defined in the U.S. Constitution. However, its meaning is rumors disseminated on social media by fearmongers who
derived from Article I, Section 9 of the U.S. Constitution where warned that martial law was being declared.22 To put into
June 2020 • kanecountybar.org | 23perspective how rarely martial law is declared, Illinois last
declared martial law after the Great Chicago Fire of 1871 to
ensure order and martial law was lifted soon after the fire was
extinguished.23
V. Conclusion
This article hopefully dispels some of the misunderstandings
and false information about the Governor’s use of executive
orders to curb the spread of COVID-19. As explored above,
the Governor had authority from the Illinois Constitution to
enact the 30-day stay-at-home order. However, his authority
to issue an extension to the stay-at-home order is unclear, Abdullah Ali
and a circuit court judge issued a restraining order against it.
An appeal is forthcoming and should provide a basis for the
Abdullah Ali is expected to receive his J.D. from NIU Law
Governor’s exertion of authority. Apparently the success of the in May 2020. He served as Notes and Comments Editor of
first lawsuit challenging the stay-at-home order’s extension has the NIU Law Review and Vice President of the Muslim Law
inspired similar lawsuits, and more are likely forthcoming. Students Association. Upon graduation, he will practice in
Nonetheless, it is important to remember that all of these the field of employment law.
actions were taken by Governor Pritzker to keep Illinoisans
safe and curb the spread of COVID-19. We must all do our
part to ensure we are keeping ourselves and others safe, even
absent a stay-at-home order.
1
Joe Tabor, What Power Does Pritzker Have in an Emergency? And What
Has He Ordered so Far?, ILLINOIS POLICY INSTITUTE (last visited Apr.
26, 2020), https://www.illinoispolicy.org/what-powers-does-pritzker-
have-in-an-emergency-and-what-has-he-ordered-so-far/.
2
Id.
3
20 ILCS 3305/6.
4
Id.
5
CBS News, Judge blocks 30-day extension of Illinois stay-at-home order, You Do the Legal Work
WWW.NBCNEWS.COM, https://www.cbsnews.com/news/illinois-stay-
at-home-order-pritzker-extension-judge-blocks/ (last visited Apr. 27, Let Us Do the Footwork
2020).
6
Id. Process Serving
7
20 ILCS 3305/7.
8
CBS News, supra note v. Delivery of Legal Documents
9
Id.
10
Id.
om etitive Service ates
11
NBC Chicago, Second Illinois Lawmaker Sues Pritzker Over Stay-at-Home
Order, WWW.NBCCHICAGO.COM, https://www.nbcchicago.com/news/
S i racing
local/chicago-politics/second-illinois-lawmaker-sues-pritzker-over-stay-
at-home-order/2263724/ (last visited May 3, 2020).
cellent ustomer Service
12
Id.
13
Id.
Servicing llinois ic igan
14
Jon Seidel, Northwestern Illinois church sues Pritzker in federal court over
his stay-at-home order, CHICAGO SUN TIMES (last visited May 3, 2020),
https://chicago.suntimes.com/coronavirus/2020/4/30/21243024/north-
ern-illinois-church-sues-pritzker-stay-at-home-order-federal-court.
15
U.S. Const. amend. X.
16
Tabor, supra note i.
17
Craig Bruce Smith, No, Martial Law Is Not Coming to America, NATION-
AL REVIEW (last visited Apr. 26, 2020), https://www.nationalreview. 1900 E. Golf Road, Suite 950
com/2020/04/coronavirus-response-no-martial-law-america/.
Schaumburg, IL 60173
18
U.S. Const. art. I, sec. IX.
19
Smith, supra note vii. 847 380-8966
20
20 ILCS 1805/Art. II. ilinfo@rancoassociates.com
21
NBC Chicago, Pritzker Addresses Rumors of Martial Law: ‘Completely www.rancoassociates.com
Inaccurate’, WWW.NBCCHICAGO.COM, https://www.nbcchicago.com/
Illinois Agency License #117.001785
news/local/pritzker-addresses-rumors-of-martial-law-completely-inaccu-
rate/2241431/ (last visited Apr. 26, 2020).
22
Id.
23
Library of Congress, Great Chicago Fire of 1871: Topics in Chronicling 30
America, WWW.LOC.GOV, https://guides.loc.gov/chronicling-ameri-
ca-great-chicago-fire (last visited Apr. 26, 2020).
24 | kanecountybar.org • June 2020You can also read
