A simple solution to Bailey versus Pritzker

Welcome to Resolution Oriented. This is my first post on the site, so before reading it, you might want to visit the About page and see what the website is, in fact, all about. Got it? Good. Carry on...

On March 20th, Illinois Governor J.B. Pritzker issued Executive Order 2020-10 requiring Illinois residents to "Stay At Home" in order to combat the COVID-19 pandemic. All non-essential businesses were closed, as were schools and many other facilities, in addition to a number of other rules put in place around social distancing. That order had an initial expiration date of April 7th. A further order extending the initial, E.O. 2020-18, was issued on April 1st (because that seemed like good timing), set to expire on April 30th.

As the health emergency deepened over a period of weeks, Pritzker (along with public health officials) issued an extension of 2020-18, with modified conditions set to begin May 1st. This extended or modified order would be much like the previous, though with a handful of loosened requirements (golf courses allowed to operate, many non-essential businesses could open for pick-up or delivery of orders, among others) and some further requirements around behavior (most specifically, wearing masks in any public facility or where six feet of social distance could not be maintained).

A few days later, Illinois Assemblyman Darren Bailey (R-Xenia, 109th District) filed suit in the 4th Judicial Circuit in Clay County to request a Temporary Restraining Order against the most recent declarative order. The case filing was light on precise reasoning and precedent but hinged on two legal thrusts: that the second order was a clear violation of the 30-day limit within the Illinois Emergency Management Agency Act, and further that these orders were unconstitutional in their infringements of individual rights to free movement. Presiding Judge Michael McHaney agreed, issuing a TRO in Bailey's favor on April 27th. In a twist, because of the nature of the suit filed, the decision applies solely to Mr. Bailey. Barring further legal actions, as of tomorrow, May 1st, Representative Bailey will be free to violate the executive order as he pleases.

There will, of course, be further legal action. The governor has stated in clear and at-times angry terms what he thinks of the lawsuit, and the Illinois Attorney General's office filed an appeal that same evening. Also of note, another Assemblyman, John Cabello (R-Machesney Park, 68th District), has filed a similar suit but is pursuing class treatment for all those "similarly situated".

I am not an attorney nor did I stay at a Holiday Inn Express last night because I am Staying At Home, but on the surface, the Appellate or Supreme Court of the state seems to be faced with two bad outcomes here. If they find in favor of one or both suits - in essence saying the 30-day limit is per disaster or emergency situation and that extensions or modifications do not constitute truly new orders - then the State of Illinois is severely wounded in it's ability to react to such a situation if it should last more than 30 days. As we saw just last year with the disastrous and months-long flooding in western and southern Illinois (including Bailey's 109th District), not to mention this year with the Coronavirus pandemic, disasters don't always fit neatly into a thirty day box. On the other hand if they find in favor of the State (that the 30-day limit is per executive order or modification), that might be good for saving lives in the current situation, but it creates a pretty huge balance of power problem. The current or any future governor could enact executive orders declaring an emergency at their sole discretion on an infinitely rolling basis, with no legislative or other checks and balances in place. I don't think anyone believes the spirit of the state's constitution is to allow that level of unfettered power to the executive.

Let's make sure we are familiar with the key phrasing in the IMEA, 20 ILCS 3305, that establishes the 30-day limit:

(20 ILCS 3305/7)(from Ch. 127, par. 1057)

Sec. 7.Emergency Powers of the Governor. 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;

You can follow the link to read the rest of the act, but the key is that phrase "not to exceed 30 days." The law does not specify either A) any possibility of legislative override or review, or B) enough detail as to whether the 30 days is per order or per disaster/emergency. This is the crux of the problem.

Here's the good news: there is a straight-forward solution to this problem, and it won't need to involve the courts, much to the likely relief of the State Supremes.

Whereas the governor of this or any other state clearly has the authority to respond to exigent circumstances with due haste, it is the state's legislature that gives voice to the people and creates the boundaries within which the executive can operate, even in emergencies. Just as the General Assembly wrote and passed the IMEA to begin with, they are best suited to patch the hole(s) in it when they are exposed. And this hole can be patched up with a fairly simple field dressing.

The state's Assembly should be recalled (virtually, or in person with careful social distancing of course) as essential service, to craft a bill to amend IMEA that would read something like this:

No extension or modification of an existing emergency order or enactment of a new order pertaining to the same disaster or emergency event beyond the initial 30 days shall be in force without a simple majority vote of both chambers of the Assembly by Joint Resolution. Such bill will establish parameters as decided by the legislature within which the state's executive can issue any new orders or extension covering that same event. Any such bill must include an end date of force not longer than 30 days. After that period, without a new joint resolution, the executive shall not be able to extend or establish new executive actions under IMEA for the same ongoing event.

By adding this legislative trigger, the state still allows the executive branch to enact the initial emergency order with all due speed to protect the people of Illinois, but puts a direct check against the executive's power to extend emergency orders past the 30 days on their own. It takes nothing away from the executive branch's ability to respond while also giving voice to the concerns of the people, and forcing that legislative review and action to recur with each successive 30 day period.

Hopefully the state's representative body will find a way to patch this hole they created. Otherwise, grab some popcorn and watch the legal wrestling matches commence, while the state grapples with the effects of the worst health emergency in a century.