Judge puts Pritzker’s ‘unconstitutional’ executive order in legal limbo

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LOUISVILLE, Ill. (NEXSTAR) — A small town family farmer challenged the police powers of the state in the Clay County Circuit Court on Monday, arguing the executive branch had no legal authority to require him to stay inside his home for more than thirty days during the Coronavirus pandemic.

The farmer, who also serves as a statehouse Republican lawmaker, won the first round of his legal bout with Governor J.B. Pritzker, whose government attorney argued that his emergency powers were virtually limitless.

Judge McHaney: You’re saying the Governor can declare these as long as he wants?

Thomas Verticchio: “As long as he declared a disaster.”

“My freedoms were being trampled on,” Rep. Darren Bailey (R-Louisville) said Monday afternoon on the courthouse lawn, which sits just steps away from his legislative office.

In granting a temporary restraining order, the judge ruled Bailey is free to disobey the Governor’s Executive Order “effective immediately,” raising a number of questions about the Governor’s pending plans to extend his ‘Stay at Home’ order through the month of May starting with another 30-day period that is scheduled to begin Friday.

More than 100 people showed up to support Bailey as he entered the courthouse. The Clay County Sheriff allowed roughly 70 supporters inside, but only after each individual was scanned for a fever. Observers were required to sit roughly three feet apart from each other inside the court room.

Judge Michael McHaney opened the proceedings telling the audience, “To the extent that this is considered a violation of the Stay at Home order, I and I alone take full responsibility for any ramifications.”

McHaney took several jabs at Pritzker’s executive authority throughout the hearing before he ultimately ruled against the governor’s exercise of power in a pandemic.

The Illinois Attorney General’s office filed a notice to appeal to a higher court on Monday night.

Bailey operates a family farm, which the Governor’s office has deemed an “essential business” during the pandemic. In an unprecedented act of executive power at the state level, the Pritzker administration defined which businesses are essential and non-essential, and ordered all non-essential businesses to halt operations, resulting in a record surge of jobless claims as the state enacts social distancing guidelines to slow the spread of the deadly contagion.

“It’s dangerous when one person takes it upon themselves to make the rules for everyone else,” Bailey argued.

Pritzker described a different kind of immediate danger that he says would have befallen thousands more Illinoisans if he had not ordered 12.7 million people into a quasi-quarantine.

“Painful as our actions might be, the question boils down to life and death,” Pritzker said during his 50th consecutive daily Coronavirus press conference at a state government building in Chicago.

“Representative Darren Bailey’s decision to take to the courts to try and dismantle public health directives designed to keep people safe is an insult to all Illinoisans who have been lost during this COVID-19 crisis, and it’s a danger to millions of people who may get ill because of his recklessness,” Pritzker said.

For the last 37 days, most of Illinois’ non-essential businesses have furloughed workers and shut their doors at the Governor’s direction. During the same stretch, Illinois has recorded 45,883 positive cases of the Coronavirus, 1,983 of which turned fatal.

While many counties keep running track of how many infected patients remain under a mandatory 14-day quarantine, the state does not publicly report the number of recovered patients each day, partially obscuring the current picture of known infected patients. The state has reported 23,858 new COVID-19 infections within the last 14 days.

“History will remember those who put politics aside to come together to keep people safe,” the governor said. “It will also remember those who [were] so blindly devoted to ideology and the pursuit of personal celebrity that they made an enemy of science and of reason.”

The judge in Monday’s case, Michael McHaney, downplayed the Governor’s warnings, suggested the state’s fatality reports could be overblown, and took offense to public remarks Pritzker made about downstate Illinois in a recent press conference.

“At a recent press conference, this Governor was asked about easing restrictions in counties that don’t have COVID,” the judge recalled. “His response was laughter.”

Pritzker has repeatedly warned that no corner of the state is immune to the ravages of the Coronavirus.

“It’s clear that some people are simply looking at the number of cases in a county and not looking at the infection rate,” Pritzker said on Monday. Pritzker noted that Jasper County, which borders Clay County and saw a recent outbreak in a nursing home, had the second highest rate of infection per capita and the highest rate of death from COVID-19 per capita in the the state.

You can explore the COVID-19 data in Illinois here.

“With respect to these statistics,” Judge McHaney asked, “isn’t it true that if I die in a car wreck and I have tested positive, my cause of death is COVID-19?”

Thomas Verticchio, a lawyer with the Illinois Attorney General’s office representing Pritzker in the case responded, “I don’t know.”

“I’m just trying to dispel the notion that if I grant this [temporary restraining order], we’re gonna kill millions of people,” the judge said. “How about the couple of states who never shut down in the first place?”

DeVore warned that unless the court restrained the Governor’s executive adventures, “the emergency powers could continue forever.”

“Disasters don’t necessarily evaporate on a 30 day time frame,” Pritzker said. “The legislature took that into account when they wrote this law.”

“My team and I will fight this legal battle to the furthest extent possible to ensure the public health and common sense and that those prevail,” Pritzker said in response to the judge’s ruling.

“In the interim, we will be issuing new public health directives, so that we can continue to respond to this public health crisis,” he said. “At this time, I strongly encourage all municipal level leaders, as well as the people of Illinois, who are our strongest weapon against this virus, to follow the advice of our scientists here in Illinois and across the nation, at IDPH and the CDC, and continue to follow the guidelines of our stay at home order.”

Buoyed by the prospects of declaring a rare political defeat against the Democratic state government, several members of the audience expressed a desire to file similar lawsuits in the coming days.

Despite the legal setback, the Pritzker administration has not yet abandoned its plans to enact the third consecutive ‘Stay at Home’ order on Friday. The latest iteration of the Governor’s plan includes expanded definitions of “essential businesses,” and allows for other non-essential retail stores to begin curbside pickup and delivery. It also authorizes golf courses and state parks to re-open under strict social distancing guidelines.

As state lawyers review their path forward, sources in the Pritzker administration say officials are pouring over the legal powers of the Illinois Department of Public Health to develop a potential backup plan in the event that their current plan of attack is derailed. State law allows the public health agency to track and quarantine infected patients “on a case by case basis,” and to implement larger containment strategies for the broader population during a pandemic.

However, government attorneys argued on Monday that if Bailey’s lawsuit results in abruptly ending the Governor’s disaster proclamation, it could jeopardize the state’s legal standing to apply for federal funds to assist in the COVID-19 relief efforts, and it could interrupt the state’s streamlined procurement efforts already in progress, reintroducing loads of red tape and resulting in a more burdensome, tedious path to victory in the fight against the Coronavirus.

Notable quotes from inside the courtroom:

Thomas DeVore: “If the legislature intended to allow the Governor to have emergency powers that extended for the duration of the disaster, they could have written that. They didn’t intend to allow the Office of the Governor to continue these proclamations in perpetuity.”

Judge McHaney: “This executive order is absolutely destroying people’s property.”

Judge McHaney: “The Speaker of the Illinois House could propose an amendment to the Illinois Emergency Management Act and grant the Governor the authority. He could pass that in a New York minute, couldn’t he?”

Thomas Verticchio: “Governors have made successive and multiple proclamations and then issued…” 

Judge McHaney: “Aren’t you talking about flooding? That governor certainly didn’t shut down the state or destroy people’s lives or property over H1N1.”

Judge McHaney: “There is a vast difference between being allowed to ask the federal government for disaster loans for a flood, and depriving me of my constitutional right to work, to travel, to exist.”

Judge McHaney: Does the Governor have the right to shred the Constitution for longer than 30 days? That’s the issue, isn’t it?

Thomas Verticchio: “There are no limitations in the act regarding the Governor’s ability to declare multiple and successive disaster.”

Judge McHaney: “There’s also nothing in the act that says you get to do this every 30 days. That ain’t in there either, is it? That pesky little thing called the Constitution is going to have to be dealt with.”

Thomas Verticchio: “That assumes every disaster is going to be over in 30 days or the legislature is going to do something. What if the General Assembly isn’t in a position to convene? Some would argue that could be the case. Some would argue that was the case now.”

Judge McHaney: “Every second this Executive Order is in existence, it is in violation of the Constitution and shreds the Bill of Rights.”

Judge McHaney: “The issue before me now is whether the Governor can ignore the Illinois and U.S. Constitutions for more than thirty days. This court rules that the answer to the question is a resounding ‘No.'”

Analyzing the Governor’s options:

  1. Proceed as planned with the Executive Order, but invite a barrage of legal challenges in the courts where the outcome is uncertain.
  2. Call the legislature into emergency session to grant broader, perhaps one-time emergency powers to the Executive Branch, but potentially expose vulnerable members in swing districts to taking controversial votes, and expose the entire legislature and staff to greater risk of contracting COVID-19.
  3. Shift the command structure of the pandemic response from the Office of the Governor to the Illinois Department of Health, relinquish executive power, and risk losing federal funding in the process.

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