Executive Orders and Their Challenges During COVID-19

Governors across the United States have issued executive orders as the country responds to the unending coronavirus pandemic (COVID-19) in hopes of slowing the virus’s spread and thus helping to safeguard the health and well-being of our communities. Here in Illinois, Governor Pritzker has used his executive authority to require residents to maintain social distancing, stay in their homes or residences, prohibit particular outdoor activities, restrict the operation of non-essential businesses, and limit the number of people gathered together outside a single household, to name a few.

For a number of constituents, this was the first time an executive order noticeably affected their normal ways of life, and after the first 30-day stay-at-home order was issued, civilians began to wonder what the function of an executive order is and where did Governor Pritzker’s authority to make these seemingly unilateral decisions originate. It is the purpose of this article to provide a brief historical background of a proclamation or executive order and to examine the governor’s authority to issue such orders, with an emphasis on recent lawsuits challenging Governor Pritzker’s COVID-19 Orders.

Executive orders and proclamations originated with the English king. The monarch enjoyed specific entitlements and rights which belonged only to him by virtue of his preeminent position. Certain direct prerogatives, including the power to make war and the right to send ambassadors to other countries, were considered a part of the king’s sovereignty. Other incidental entitlements were attached to the Crown, including that no costs could be recovered against the king and his debt was preferred to the debt of anyone else. These exceptions were established from the general rules applicable to the entire kingdom.

Unlike the king, whose authority to issue a proclamation or an executive order is rooted in his position, the office of governor was created by state constitutions to head the executive department of the state. Reacting to the arbitrary and powerful colonial governors preceding the American Revolution, the legislatures of the newly established states expressed their fear of the governor’s office by constitutionally limiting the authority of the executive branch. In contrast to the king, a governor possessed only those powers delegated to him by the state constitution or by state statute, and such powers were limited in that they could be exercised only in the manner provided. Most state constitutions place the supreme executive power, the chief executive power, or the executive power in the office of the governor, and frequently cloak their chief executive with the responsibility to “take care that the laws be carefully executed.”

Particularly in Illinois, the governor’s implied power to promulgate an executive order or proclamation in response to the coronavirus pandemic is centered within Article V, Section 8 of the Illinois Constitution and explicitly stated in the Illinois Emergency Management Agency Act. See 20 ILCS 3305 et seq. which is hereinafter referred to as the “IEMAA.”

Article V, Section 8 of the Illinois Constitution states: “The Governor shall have the supreme executive power and shall be responsible for the faithful execution of the laws.”

The IEMMA states: “In the event of a disaster, as defined in Section 4, the governor may by proclamation declare that a disaster exists. Upon such proclamation, the governor shall have and may exercise for a period not to exceed 30 days the following emergency powers.” See 20 ILCS 3305/7.
Section 4 of the IEMMA defines a disaster as the following: “Disaster” means an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism. See 20 ILCS 3305/4.

Pursuant to his authority, explicit and implicit, Governor Pritzker proclaimed that a disaster existed within the State of Illinois after determining that the circumstances surrounding COVID-19 constituted a public health emergency, and he declared all counties in the State as a disaster area on March 9, 2020 (Gubernatorial Disaster Proclamation). Thereafter, Governor Pritzker issued a number of executive orders, the first being Executive Order 2020-10 on March 20, 2020, which required Illinois residents to maintain social distancing and stay in their homes, except to engage in “Essential Activities, Essential Government Functions, or to operate Essential Businesses and Operations.” The Executive Order became effective on March 21, 2020 at 5:00 p.m. and continued until April 7, 2020. On April 1, 2020, Governor Pritzker issued a second proclamation declaring the COVID-19 pandemic to be a continuing public health emergency and extended the duration of the March 20 Executive Order twice with the last extension until May 30, 2020.

While residents and leaders from both parties had given Governor Pritzker high marks for his handling of the crisis, especially after his early stay-at-home order was widely credited for helping control the spread of infection in Illinois, there were a handful of lawsuits filed challenging the constitutional and statutory authority of those executive orders.

Lawsuits Challenging the Governor’s Exercise of Executive Power

The first lawsuit was filed in Clay County by Darren Bailey on April 23, 2020, alleging the governor overstepped his power by declaring more than one state of emergency and shutting down non-essential businesses to address the COVID-19 pandemic. The Clay County Circuit Court judge presiding over the matter ruled that the 30-days of emergency powers provided under the IEMAA lapsed on April 8, 2020 and any executive orders in effect after that date relating to COVID-19 were void. Particularly, this ruling did not apply statewide and only applied to the individual Bailey. The Illinois Attorney General’s Office, which represents the governor, appealed the ruling to the Illinois Supreme Court.

Governor Pritzker then had to defend against other lawsuits, including six that were filed in July 2020 in six downstate counties, that also alleged the governor overstepped his legal authority in issuing executive orders in response to the COVID-19 pandemic, and that the Pandemic did not fit the criteria under state law as a public health emergency in their respective counties. While the plaintiffs concede the COVID-19 pandemic satisfied section (a) of the definition, because COVID-19 is “an illness or health condition that (a) is believed to be caused by the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin”, the plaintiffs insist the COVID-19 pandemic is not a public health emergency because it does not satisfy any of the three disjunctive requirements set forth in section (b). Specifically, the lawsuits plead only three factual allegations in support of their theory: 1) the total number of people who have been tested for, 2) contracted, and 3) died from COVID-19 in each of their counties, which did not demonstrate that COVID-19 was a public health emergency within the meaning of the IEMAA.

Governor Pritzker, through representation by the Illinois Attorney General, filed to dismiss the six lawsuits, collectively, before a Sangamon County Circuit Court judge, who granted the governor’s motion to dismiss. The court stated in its ruling that the complaints fell short on facts needed to support their claims. The judge explained that “Illinois is a fact pleading state, which means that plaintiffs must allege facts, not conclusions to establish a viable cause of action.”

Additionally, the initial lawsuit filed by Bailey was redirected by the Illinois Supreme Court to the same above-mentioned Sangamon County Circuit Court judge, and the court also dismissed Bailey’s complaint on the grounds that his amended complaint failed to state a cause of action and therefore any amendment would be futile.

Similarly, on October 30, 2020, McHenry County Circuit Court Judge Michael Chmiel ruled against a group of restaurant owners who had filed suit against the governor arguing he exceeded his authority in restricting indoor dining at restaurants and drinking at bars, which would permanently imperil their businesses. Judge Chmiel found that the governor has authority to impose restrictions on businesses because the IEMAA gives the governor the authority to continue to issue new disaster declarations and reassert emergency powers every 30 days. Notably, Judge Chmiel factored in the role of the legislative branch by drawing attention to the fact that lawmakers could have taken the time to insert language in the IEMAA explicitly granting the governor such extended emergency powers.

As recent as November 6, 2020, the Illinois second district appellate court struck down an order from a Kane County Circuit Court judge that had allowed a restaurant in Geneva, IL to continue operating legally despite the executive orders issued by Governor Pritzker that had otherwise shut down indoor restaurant dining this fall in order to reduce the spread of COVID-19. The court explicitly declared Governor Pritzker has the authority under state law to claim emergency powers by executive order for as long as he believes the disaster that caused the emergency continues.

While only the Clay County judge has declared Governor Pritzker’s orders unconstitutional, these rolling controversies spotlight the need to explicitly clarify the governor’s authority and boundaries involving the use of executive orders in relation to the COVID-19 Pandemic. Without any federal mandates, an executive order or proclamation is the only tool available to Governor Pritzker to implement various restrictions and guidelines in order to protect Illinois residents and prevent the spread of COVID-19. And given recent data regarding the increased spread of the virus in Illinois, it is possible we will see new and different, or renewed executive orders issued by the governor—and thus more challenges to those orders.