Illinois (ECWd) -
We are of the opinion the Memorandum we obtained today is a game-changer for Illinois and a clear shot across the bow of Governor Pritzker's Executive Order.
From day one we have questioned the overreach and legality of elements of the Executive Orders and now it appears all of our positions have been validated by the Chief Deputy Director of the Illinois Appellate Prosecutor's Office, David J. Robinson in his memorandum to the Director of that office.
We greatly appreciate that finally a legal analysis is provided with clear language, case law, and supporting footnotes to support the legal position as to how our laws are to be applied. We thank him for confirming many of the very arguments we presented in numerous articles covering Governor Pritzkers Executive Orders.
The entire document is a MUST read and can be downloaded here or viewed below.
Some Key points are as follows:
- A cursory review of the EO (and extension) reveal clear - although potentially justified - infringements on the constitutional rights of Illinois citizens.
- Article I, §23 also specifically accounts for citizen's being responsible for their actions to preserve liberty, as follows: "A frequent recurrence to the fundamental principles of civil government is necessary to preserve the blessings of liberty. These blessings cannot endure unless the people recognize their corresponding individual obligations and responsibilities." Implicit in §23 is idea that emergencies may require adherence to individual responsibility rather than suspension of Constitutional rights. Implicit in §23 is idea that emergencies may require adherence to individual responsibility rather than suspension of Constitutional rights.
- To that end, Article V (The Executive) does not provide emergency powers to suspend constitutional rights, nor does Article XII (Militia) permit the Governor to organize the militia except to "enforce the laws, suppress insurrection, or repel invasion." This is likely why the Governor has taken the position he has taken regarding enforcement, as well as why he did not cite any constitutional authority in the E0.8
"The Governor cites several sections of the Emergency Management Act (20 ILCS 3305/7(1),(2,)(8),(10},(12} (Emergency Powers of the Governor) as authority for the EO. Putting aside the axiom that statutory law may not supersede the constitutional rights of citizens, other problems exist here as well."
- And finally, the Act appears to provide the Governor a maximum 30-day window. 20 ILCS 3305/7 (West 2018}("Upon such proclamation [of a disaster], the Governor shall have and may exercise for a period not to exceed 30 days following emergency powers. . . ").11
"My research leaves me less than confident that a reviewing court will hold that the Governor has the authority close businesses, bar attendance at church services and assemblies in excess of ten citizens (particularly if they are assembling to redress grievances). From a strict enforcement standpoint, although well-intentioned on an emergency basis, the EO is very broad and does not appear to meet strict scrutiny - this is not to mention the EO appears to be beyond the framework of the specific Act it cites as support.