Welcome to Week 10 of CoronaCareᵀᴹ enforcement: you will be made to care and you will like it! In today’s Broadside, I’m going to risk being a bit dry with a focus on Illinois and legal citations, but I hope by the end of column you’ll find it brings some clarity to what is going on.

What is the goal?

Is anyone else asking when “flatten the curve” became “find the cure”? Doesn’t it seem like the goal posts got dragged not just to the back of the end zone, but out of the stadium?

The original goal was to slow the spread of the Chinese Lung Pox to keep our health care system from being overwhelmed. Here in Illinois, the purpose of the original March 20, 2020 Executive Order, directing us all to stay in our homes, was spelled out in a separate paragraph (Section 1.16):

“16. The Intent of this Executive Order. The intent of this Executive Order is to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible. When people need to leave their places of residence, whether to perform Essential Activities, or to otherwise facilitate authorized activities necessary for continuity of social and commercial life, they should at all times and as much as reasonably possible comply with Social Distancing Requirements. All provisions of this Executive Order should be interpreted to effectuate this intent” (emphasis mine).

The purpose was “to slow the spread of COVID-19 to the greatest extent possible.” The first clause is straightforward: “to slow the spread of COVID-19.” The second clause is aspirational yet problematic: “to the greatest extent possible.”

Questions
• How do we know when we’ve achieved “the greatest extent possible”?
• Can such an arbitrary goal be used to extend the executive’s power?

I would argue that the goal is only achievable if we add, “… to the greatest extent possible in 30 days.”

30 days hath September—and so do all the rest

The original order was effective through April 7 (24 days), which was the day on which Gov. Pritzker’s March 9, 2020 Gubernatorial Disaster Proclamation regarding COVID-19 expired. To wit: “Section 11. This proclamation shall be effective immediately and remain in effect for 30 days.”

Here we need to note that the Illinois Emergency Management Agency Act, Section 7, on which Gov. Priztker’s Executive Orders (EOs) rely heavily, seem to limit a disaster decree to 30 days: “Upon such proclamation [of a disaster], the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers.” That’s why Section 11 of his March 9 proclamation was limited to 30 days.

However, on April 1, 2020—a week before his March 9 proclamation expired—Gov. Pritzker issued a new Proclamation, finding “that a continuing disaster exists within the State of Illinois” and that the proclamation would “remain in effect for 30 days” i.e. April 30, 2020.

Question
• If the subject of his proclamation is the same disaster as the previous proclamation, does the governor have the authority to issue a new 30-day proclamation?

But wait! On April 30, 2020, Gov. Pritzker issued yet another Proclamation, declaring “that a disaster exists within the State of Illinois” and that this new proclamation would “remain in effect for 30 days” i.e. May 30, 2020. I note that he did not find in this proclamation that “a continuing disaster” existed—just “a disaster.”

Question
• I think I speak for all Illinoisans when I ask, “Can Gov. Pritzker simply declare a disaster every 30 days, or does the legislature in Springfield have to approve such authority?”

The lawsuit and the law

Gov. Pritzker absolutely believes he can declare a disaster every 30 days for as long as necessary. We know this because he has argued so in a recent lawsuit.

State Representative Darren Bailey sued the governor for alleged violation of civil rights. Bailey said, “My lawsuit asks the court to find that Governor Pritzker overextended his power by issuing additional ‘Stay At Home’ orders after his original disaster proclamation, which expired on April 9th, 2020.” He was granted a temporary restraining order (TRO) by the court, with Clay County Judge Michael McHaney ruling Pritzker’s extended stay-at-home order “shredded the constitution.”

In appealing the TRO, Gov. Pritzker asserted that, “The Act does not limit the number of proclamations that the Governor may issue for a single disaster. In fact, under the Act, Illinois governors have issued multiple and often successive proclamations regarding the same disaster. Over the last decade, Governors Quinn, Rauner, and Pritzker have issued such disaster proclamations.”

However, the Chief Deputy Director of the Illinois Appellate Prosecutor’s Office, David J. Robinson, in a memorandum to the Director of that office, Patrick J. Delfino, wrote, “A cursory review of the EO (and extension) reveal clear – although potentially justified – infringements on the constitutional rights of Illinois citizens;” that “the Act appears to provide the Governor a maximum 30-day window” (my emphasis); and that, “My research leaves me less than confident that a reviewing court will hold that the Governor has the authority close businesses, bar attendance at church services and assemblies in excess of ten citizens (particularly if they are assembling to redress grievances).”

So, we have an explicit power to declare a disaster “for a period not to exceed 30 days,” but it neither affirms nor denies the governor’s power to renew such a declaration every 30 days in perpetuity. The Appellate Prosecutor’s Office believes there are clear violations of Illinois Constitution in the governor’s EOs. It seems a court or the legislature needs to fix that.

Moving the goal posts

Gov. Pritzker has made three Disaster Proclamations and multiple Executive Orders on the authority of those proclamations. But we are now living under his five-phase “Restore Illinois” plan, which cannot be completed unless “Testing, tracing and treatment are widely available throughout the state” and “Either a vaccine is developed to prevent additional spread of COVID-19, a treatment option is readily available that ensures health care capacity is no longer a concern, or there are no new cases over a sustained period.”

We are in “Phase 2: Flattening,” which is described as, “The rise in the rate of infection is beginning to slow and stabilize. Hospitalizations and ICU bed usage continue to increase but are flattening, and hospital capacity remains stable. Face coverings must always be worn when social distancing is not possible. Testing capacity increases and tracing programs are put in place to contain outbreaks and limit the spread.”

That was the original goal of the initial Executive Order, which is now only a “phase” in a much longer process. The speed at which we move through the process necessarily does not come with dates, i.e. “Phase 2 will last through May 21, Phase 3 will be from May 22 – June 15,” etc. In other words, this could go on indefinitely until the markers for each phase are met.

Question
• Does Gov. Pritzker’s authority allow him to indefinitely suspend the liberties of the citizens of Illinois “to provide for the health, safety and welfare of the people” as the preamble of the Illinois Constitution says?

I’m no lawyer or legal scholar, but this is what I’ve been able to put together so far. If we had stuck with the original goal of slowing the spread to flatten the curve to avoid overwhelming the hospitals, we could congratulate ourselves and get back to “normal.” But Gov. Pritzker is extending his orders based on an ambiguity of legal authority and, most likely, a violation of the federal and state constitutions. Unfortunately, there don’t appear to be clear or immediate answers to the questions I’ve raised, nor any fast-moving legal challenges to his actions.