In the last two weeks, Gov. J.B. Pritzker has issued a series of executive orders in response to the spread of the COVID-19 virus in Illinois.
These executive orders have limited the size of public gatherings, suspended enforcement of certain laws and agency operations, and closed schools and nonessential businesses in an effort to slow the spread of the virus and prevent the state’s health care system from being inundated with severely ill patients. The governors of New York, California, and Ohio have issued similar executive orders.
But where do those executive powers come from? And what is or isn’t allowed?
While the federal government is a government of enumerated powers – it can only exercise the powers specifically granted to it by the U.S. Constitution – state governments retain what is known as “police powers” to protect the welfare, safety and health of their residents, in keeping with the 10th Amendment of the U.S. Constitution.
This system means that states have more flexibility to act without running up against constitutional barriers. It also means states, not the federal government, have the power to tighten or loosen the restrictions ordered by state governors.
The governor’s authority to issue the recent series of COVID-19 executive orders comes from Section 7 of the Illinois Emergency Management Agency Act. In the case of a disaster such as a viral epidemic, the governor can issue a proclamation declaring that disaster, allowing him to exercise the emergency powers authorized in the act for a period of up to 30 days. State and local police can work together to enforce orders given under these emergency powers.
Pritzker declared a statewide disaster on March 9, triggering his emergency powers. He began issuing a series of executive orders a few days later.
Pritzker’s emergency powers include but are not limited to the following, which have been cited in the governor’s orders thus far:
- To suspend any provisions of regulatory statute that would prevent, hinder or delay necessary action by the state or state agencies.
- To utilize all available resources of the state government reasonably necessary to cope with the disaster.
- To redirect state departments or agencies toward disaster response purposes.
- To control the movement of persons and occupancy of premises within the disaster area.
- To provide temporary emergency housing.
- To control, restrict, and regulate the use, sale, or distribution of food, feed, fuel, clothing and other commodities, materials, goods, or services.
Here is a timeline of Pritzker’s executive orders so far:
March 12:
- COVID-19 Executive Order No. 1: Extends the application deadlines for cannabis growers, infusers, and transporters to March 30, 2020
- COVID-19 Executive Order No. 2:
- Cancels all public and private gatherings of 1,000 people or more
- Closes the Thompson Center to the general public
- Suspends the two-year continuous service requirement for state employees to receive advancement of sick leave
- COVID-19 Executive Order No. 3:
- Closes all public and private K-12 schools through March 30
- Suspends definition of student “chronic absences” so that it will not include absences due to COVID-19 closures and absences
- Suspends the requirement that school districts gain approval for the implementation of e-learning programs
- COVID-19 Executive Order No. 4: Clarifies that the closure of schools does not close the buildings for food provision or noneducational purposes like polling places.
- COVID-19 Executive Order No. 5:
- All bars and restaurants must cease all on-premises consumption through March 30 (later extended)
- Prohibits all public and private gatherings of 50 people or more
- Suspends one-week waiting period for unemployment claims
- Suspends Open Meetings Act requirement that members of a public body must be physically present. Encourages postponing official government business when possible, and when conducting government business can’t be postponed, making video and phone access available to the public.
- COVID-19 Executive Order No. 6:
- Suspends expiration of vehicle registration, driver’s licenses, parking decals, state ID cards and related proceedings
- Suspends filing requirements for statements of economic interest by certain public officials and state employees under governmental ethics laws
- COVID-19 Executive Order No. 7: Mandates health insurance issuers regulated by the Department of Insurance cover the costs of in-network telehealth services
- COVID-19 Executive Order No. 8:
- Defines essential businesses, operations and government functions that are exempt from the order
- Reduces allowable public and private gathering size to no more than 10 people
- Orders all law enforcement officers to cease enforcing eviction orders for residential premises
- COVID-19 Executive Order No. 9:
- Suspends requirement that Department of Corrections provide relevant state’s attorney’s office 14 days’ notice before an inmate receives an early release for good conduct and replaces with requirement that notice be provided as far in advance as possible or as quickly as possible.
- Makes several minor revisions, clarifications or additions to previous executive orders
- COVID-19 Executive Order No. 10:
- Suspends prohibition on hiring nursing assistants who are inactive on the Healthcare Worker Registry if they meet certain criteria
- Extends the conditional employment period for nurse assistants pending fingerprinting/criminal background check
- Suspends provision requiring 30-day written notice from the Department of Juvenile Justice before a youth inmates target release date and replaces with requirement that the department notify the state’s attorney’s office of release dates with as much advance notice as possible or as quickly as possible
- Suspends requirement that Miners’ Examining Board hold an exam once every month