(This article was published first at Illinois Policy Institute).
On Oct. 16, Gov. J.B. Pritzker issued his ninth disaster proclamation citing the COVID-19 pandemic, again extending his emergency powers on his own authority.
At the end of this proclamation’s 30-day period, the governor will have claimed emergency powers to deal with the COVID-19 pandemic for almost 250 consecutive days. Under these powers, the governor has issued orders limiting the operation of shops, bars and restaurants, restricting in-person gatherings, closing schools and mandating the wearing of masks, to name just a few.
The governor’s emergency powers stem from the Illinois Emergency Management Agency Act, which limits the exercise of emergency powers to 30 days after a disaster proclamation is made. Pritzker has claimed he can extend his emergency powers indefinitely by continuing to issue new disaster proclamations as they expire. The Act is silent as to whether the emergency powers can be renewed in that way, and the Illinois General Assembly has not stepped in to clarify with new legislation.
Pritzker’s authority to continuously extend his emergency powers is being challenged. Illinois state Rep. Darren Bailey, R-Xenia, filed a lawsuit claiming Pritzker had overstepped his authority. In July, a Clay County judge struck down Pritzker’s extended executive orders as void. Pritzker was unable to appeal that ruling because the judge did not make a final ruling on all issues in that case, but the governor was able to consolidate Bailey’s case with other challenges in the circuit court in Sangamon County.
Pritzker then attempted to vacate the Clay County decision on his emergency powers, arguing that Clay County did not have jurisdiction over the case when the judge made his decision. The Sangamon County court denied Pritzker’s motion on Oct. 19. The court determined the governor could challenge the lawsuit on its merits, but not on the basis of a lack of jurisdiction.
The Illinois General Assembly could render moot the challenges to Pritzker’s emergency powers extensions by passing legislation that clarifies or limits those powers. So far state lawmakers have declined to do so.
Most states have not allowed emergency powers to last indefinitely. Emergency executive powers are meant to allow the governor to quickly address a disaster in a way that a deliberative body such as the General Assembly simply cannot. But as the sudden emergency becomes a longer-term problem, the legislature should deliberate to come up with a response with input from a variety of viewpoints for long-term and collaborative solutions.
The governor was not meant to rule by executive order and emergency powers forever. But for now in Illinois, Pritzker has decided to govern that way as the legal challenges work their way through the courts.