State legal memo: Illinois governor needs lawmakers’ approval before extending emergency powers
Amid a recent series of lawsuits, the 2001 informal opinion by the Illinois Attorney General’s office concludes the emergency powers granted a governor during a disaster cannot be extended beyond 30 days without legislative approval.
A state legal opinion drafted in 2001 has recently come to light, and it bolsters the arguments against Illinois Gov. J.B. Pritzker repeatedly extending his emergency powers beyond 30 days during the COVID-19 pandemic.
State Rep. Darren Bailey, R-Xenia, recently filed an amended lawsuit to include reference to a informal opinion drafted in 2001 by Senior Assistant Attorney General Michael Luke, according to the Chicago Tribune. The 2001 memo concluded that an interpretation in which the governor could extend the 30-day limit on emergency powers after a disaster declaration “would render the limitation clause meaningless.” The memo by the chief of the Illinois Attorney General’s Opinions Bureau went on to suggest that the governor would need legislative approval to extend the 30-day period.
Bailey filed the original lawsuit on April 23, alleging Pritzker exceeded his authority by making a second COVID-19 disaster declaration to extend his emergency powers beyond the 30-day limit of the Illinois Emergency Management Agency Act, or IEMAA. The circuit court judge granted a temporary restraining orderagainst enforcement of the governor’s stay-at-home order against Bailey, but the restraining order did not extend to other Illinoisans. Pritzker immediately appealed.
Bailey has since asked the appellate court to vacate the restraining order, and the Illinois Supreme Court declined to intervene despite the governor’s request. This means the governor’s administration will have to go through the usual appeals process. Bailey filed his amended lawsuit shortly after.
The 2001 memo surfaced amid a series of additional lawsuits filed against the governor’s orders, arguing that Pritzker has overstepped his authority under the U.S. Constitution as well as Illinois law. The good government group Edgar County Watchdogs has compiled a list of sources arguing against Pritzker’s authority to extend his emergency powers.
Some of these legal battles could have been averted had the General Assembly organized a plan to meet before the initial proclamation expired. The legislature could have clarified the limit in the IEMAA to allow the governor to extend his emergency powers, or they could have passed legislation specifying his powers to deal with the COVID-19 crisis. Pritzker’s authority would still be limited by the U.S. Constitution and the Illinois Constitution, but the fundamental issue of the 30-day limit would have been rendered moot.
The legislature needs to convene to pass the permanent reforms the state must make to meet the current and future challenges of this crisis, as well as to pass a budget and take care of other legislative business. The General Assembly has finally announced plans to meet May 20-22 for the first time since March. But that comes too late to head off the lawsuits that are now being responded to alongside the COVID-19 crisis itself.