(Editor's note: This article was published first at Illinois Policy Institute).
Since the beginning of the COVID-19 pandemic nearly 22 months ago, Gov. J.B. Pritzker has exercised powers granted to him by state law to enact policies during states of emergency.
Using these powers, Pritzker has issued over 100 executive orders, including limiting the size of public gatherings, suspending enforcement of certain laws and agency operations, closing schools and certain businesses, ordering residents to stay at home, issuing mask mandates, and more recently, requiring vaccinations for most school employees, health care workers, and day care workers, among others.
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.
Despite legal challenges, Pritzker has been able to extend those powers by reissuing disaster proclamations each time they expired. In December 2020, a Sangamon County judge vacated a Clay County court’s ruling striking down Pritzker’s extended emergency orders.
In her ruling, the Sangamon County judge cited an Illinois 2nd District Appellate Court ruling against FoxFire Tavern, a restaurant that challenged Pritzker’s ban on indoor dining. The Sangamon County court noted the appellate court had found the IEMAA allows the governor to issue successive disaster declarations over the course of the same ongoing disaster. The Illinois Supreme Court then rejected Foxfire’s appeal in May 2021.
Illinois lands in the middle of the pack when it comes to the degree of latitude states give their governors in exercising emergency powers, according to a report by the Maine Policy Institute. Several states have been moving to limit executive powers in the wake of widespread use of emergency executive orders in addressing the COVID-19 pandemic, but the General Assembly has so far shown little appetite for asserting itself over Pritzker’s emergency powers in the Prairie State.