Illinois Governor's Stay-At-Home or Shelter-In-Place Order Authority and Challenge to It

By now, every reader knows about the Novel Coronavirus, officially called, "COVID-19." In response to the pandemic, back on March 21, 2020, at 5:00 p.m., Illinois Governor J.B. Pritzker's "Stay-at-Home" executive order, otherwise known as his "Shelter-In-Place" order, became effective. It was due to expire on April 7. The order was then extended until April 30, and the Governor has since sought to extend it to May 30. As of April 28, 2020, a temporary restraining order was granted, putting a limited temporary stop to the executive order's extension. This article will discuss the Governor's authority to issue his executive order in relation to COVID-19, and explain how it is that a temporary restraining order against the Governor's executive order could be granted.

Authority for the Executive Order

Contrary to popular belief, executive orders cannot just be issued by force of who someone is. Even the President's ability to issue an executive order is limited, and this is equally true in the State of Illinois. Here, Governor Pritzker issued his executive order with specific statutory authority to do so. In particular, Section 7 of the Illinois Emergency Management Agency Act, found at 20 ILCS 3305, grants the Governor specific emergency powers in certain instances. This is the authority cited by the Governor's office in its executive orders. Under the Illinois Emergency Management Agency Act, the Governor can declare a disaster, which he has in the case of this viral epidemic or pandemic.

How to Stop the Governor's Executive Order

Republican State Representative Darren Bailey filed a lawsuit against the Governor and sought a temporary restraining order against the extension of the Shelter-In-Place. That temporary restraining order was granted on Monday, April 27, 2020. The basis for it was the same act the Governor cited for authority to issue the executive order. Under section 7 of the Illinois Emergency Management Agency Act, the emergency powers given to the Governor after an emergency declaration are "for a period not to exceed 30 days." The statute says nothing about those powers being extended beyond 30 days, or whether those powers still exist after 30 days, even when there is an ongoing emergency declaration. This was why the temporary restraining order was granted. Perhaps it was never contemplated that a state-wide emergency would last more than 30 days, or perhaps it was contemplated that if a state-wide emergency did last longer than 30 days that the Legislature should play a role, as opposed to legislating by executive order.

What the Temporary Restraining Order Means for You

In a word, nothing. Rep. Darren Bailey filed the lawsuit in his own name, and on his own behalf, not on behalf of other Illinois citizens. The temporary restraining order only enjoins the enforcement of the executive order against Rep. Bailey. It is possible for other individuals or groups to try to join in the lawsuit, or, alternatively, file their own lawsuit seeking a similar injunction on their own behalf. As of the date of this article, Illinois' Governor is seeking to appeal the decision and seeking to stay the imposition of the restraining order pending that appeal.

Copyright © 2020 by Brendan Bukalski
The information provided in this column is general in nature, and should not be relied upon as legal advice or interpreted as creating an attorney-client relationship. As a general rule, all specific legal problems should be handled by an individual's attorney. All rights reserved. Any copying, duplication, or commercial use of the information contained in this column is strictly prohibited without prior permission.
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