(Editor's Note: This article was published first at Illinois Policy Institute).
State supreme courts in two of Illinois’ neighbors, Wisconsin and Michigan, have now ruled their governors cannot issue disaster declaration after disaster declaration as a way to impose mask and other mandates. At some point state legislatures are expected to debate and set those policies.
But the practice continues in Illinois, where Gov. J.B. Pritzker has issued disaster proclamations to extend his executive orders 14 times.
The Wisconsin Supreme Court ruled ruled 4-3 against Democratic Gov. Tony Evers’ statewide mask mandate March 31, saying Evers exceeded his authority by repeatedly issuing disaster declarations. The governor was required to seek legislative approval to issue more orders after the expiration of the initial 60-day mandate he signed in August, according to the justices.
Last February, Evers inked an executive order requiring masks in public places just an hour after the Republican-controlled Wisconsin State Assembly voted to repeal that mandate. Lawmakers contended Evers didn’t have the authority to issue the order. Wisconsin state law states governors can issue public health emergency orders for 60 days, but then the legislature must approve an extension.
“The question in this case is not whether the governor acted wisely; it is whether he acted lawfully. We conclude that he did not,” Justice Brian Hagedorn wrote for the majority opinion.
The ruling is similar to a decision handed down by the Michigan Supreme Court last October against Democratic Gov. Gretchen Whitmer. The court concluded without the approval of the legislature, Whitmer could not declare a new COVID-19 disaster in order to extend her emergency executive powers past the legally mandated 28-day limit.
Pritzker has used the same tactic in Illinois with little push-back from the General Assembly. He has invoked the Illinois Emergency Management Agency Act repeatedly since COVID-19 hit Illinois in March 2020, despite the 30-day limit on any emergency declaration. By doing so, he has been able to mandate masks, impose capacity limits on specific businesses and put limits on public spaces indoors and outdoors.
Pritzker has contended he can extend his emergency powers indefinitely by continuing to issue new disaster proclamations as they expire. The Act is silent on 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 dismissed the Wisconsin ruling as political. But by going it alone, he opened himself to criticism that he was happy to wield authority without seeking others’ counsel, said John Jackson of the Paul Simon Public Policy Institute at Southern Illinois University.
“Republicans, long and short, will go after him on this and will say that he didn’t consult with anyone, he became a petty dictator and all of that,” Jackson said. “The ads kind of write themselves.”
Pritzker has faced court challenges over the repeated 30-day disaster declarations based on COVID-19, but those challenges have not halted the governor’s use of repeated declarations. He asked a case brought by FoxFire restaurant in Geneva over capacity limits to be dismissed, but the judge has yet to rule.
Pritzker’s attorney argued the ballot box is where judgment should be made about his actions. But FoxFire attorney Greg Earl said that was the wrong attitude in a state where 35% of small businesses have closed since the pandemic.
“I think the governor’s argument of ‘just wait until I’m out of office’ is horrific, to be honest with you,” Earl told WMAY radio in Springfield.
Earl also said the documents produced during the lawsuit so far show Pritzker’s administration has not been straight with the public about the information he used to support his executive orders during the pandemic. They show COVID-19 cases traced to restaurants in FoxFire’s county at 1.2% compared with nearly half linked to nursing homes and other group living arrangements.
Pritzker, Whitmer and Evers all have argued they extended disaster declarations because they were concerned about the safety of their states’ residents. While Evers can no longer mandate masks, he has urged residents to continue wearing them as COVID-19 cases and hospitalizations continue to rise in Wisconsin.
Pritzker previously issued multiple declarations for the same disaster during spring flooding in 2019. He has renewed the COVID-19 disaster declaration 14 times.
Most states impose limits on emergency powers, which are intended to allow a governor to quickly address a disaster. If the situation becomes a long-term problem, the legislature is expected to step in and debate solutions.
Unless a case reaches the Illinois Supreme Court, Pritzker faces no debate and no limits as long as state lawmakers are willing to let him take sole responsibility for his executive decisions.