Challenges to Illinois’s Stay at Home Orders in Response to COVID-19

Throughout the United States, various stay at home orders have been implemented, with the primary purpose of protecting against the spread and effects of COVID-19, also known as coronavirus.[1] As of April 20, 2020, 42 states had effected orders, with varying provisions, directing citizens to limit their exposure by staying at home.[2] Although these orders have been aimed to protect against public health effects, the orders have not been without controversy.[3] In particular, Illinois has begun to face various lawsuits, aimed at challenging the legality and constitutionality of its stay at home orders.[4]

On March 20, 2020, Illinois Governor J.B. Pritzker announced Illinois’s implementation of its first stay at home order due to the increasing spread of coronavirus.[5] In justifying the order, Governor Pritzker indicated that the goals of the order were to protect lives, and also to prevent a potential overrun of the state’s health care system.[6] Among its many provisions, the order provided that “non-essential business and operations must cease.”[7] Governor Pritzker issued the stay at home order by “activating power under the Illinois Emergency Management Agency Act.”[8] Under the Act, the Illinois governor is given emergency powers, in times of disaster.[9] Specifically, the Act provides that the governor may declare a disaster, under an official disaster proclamation, but that such declaration shall last “for a period not to exceed 30 days.”[10] However, due to the continual spread of the coronavirus, the order was modified and extended, with new measures beginning on May 1, 2020.[11] Although some restrictions were lessened, Governor Pritzker maintained that the continued order was necessary, as without the order, “death rates and hospitalizations would start rising sharply by the middle of May.”[12]

Once the newly extended order was announced by Governor Pritzker, he began to face legal challenges.[13] An Illinois lawmaker filed a lawsuit on April 23, 2020 against Governor Pritzker.[14] It was alleged under the lawsuit that through Illinois’s new stay at home order, “Pritzker exceeded his authority and violated the civil rights of the state’s residents.”[15] In this particular case, the judge ruled in favor of the state representative and “granted a temporary restraining order.”[16] Governor Pritzker has since appealed the judge’s ruling.[17] However, another lawsuit was filed by a different state representative, on April 29, 2020, for all Illinois citizens.[18] Additionally, a church in Illinois filed a lawsuit against Governor Pritzker where its “complaint takes issue with how Pritzker’s stay-home order deemed worship spaces nonessential.”[19]

Now, it remains to be seen whether the orders put in place by Governor Pritzker will be upheld. At the crux of the argument is whether Pritzker’s extension of the stay at home order, beyond the initial 30 days after the initial emergency declaration, is in violation of the Act.[20] In response to the lawsuits filed, Illinois Attorney General Kwame Raoul argues that “nothing in state law prevents Pritzker from issuing a second order for an additional 30 days.”[21] Further, Raoul states in his appeal to the court that under the Act, “[t]he only statutory requirement for such a proclamation is that a disaster ‘exists.’”[22] Raoul further claims that “each proclamation triggers a new 30-day period under which the Governor may exercise emergency powers.”[23]As support, besides the Act itself, Raoul argues that previous Illinois “governors have issued multiple and often successive proclamations for the same disaster.”[24]

Assessing the court filings of Raoul, Illinois maintains that Governor Pritzker abided under the law by issuing a new order, with the continuation of the disaster proclamation.[25] Drawing on legislative intent, according to Raoul, it seems unlikely that the Illinois legislature intended for the governor to be able to only exercise emergency powers for a sole period of 30 days, despite the continuation of a disaster, where public health risks will continue if the order is not maintained.[26] Without the continuation of the order, he argues that “COVID-19 would once again begin its exponential spread throughout the State, resulting in the inevitable loss of many lives. That cannot be the result the General Assembly intended.”[27] Apart from this, Raoul argues that Governor Pritzker is able to constitutionally exercise police powers to protect the health of Illinois citizens.[28] When considering the governor’s power as chief executive of the state and the ultimate intent of Illinois’ constitution to protect citizens, Raoul argues that “the Governor’s constitutional authority allows him to take immediate measures necessary to protect the public health.”[29] In further considering the Constitutional implications, the authority of the states “to enact public health measures,” is rooted in the Tenth Amendment of the United States Constitution.[30]

As the cases in response to stay at home orders in Illinois and other states continue, it will remain to be seen whether the orders implemented by state governors will be upheld. While courts decide on the constitutional and legal bases of stay at home orders, the disasters faced by states will continue, both in a public health sense and economically. Thus, judges and state supreme courts will need to be careful to balance the effects that their rulings may have upon citizens of their respective states.

[1] Morgan Chalfant, Trump claims he, not governors, has authority on opening state economies, Hill (Apr. 13, 2020), thehill.com/homenews/administration/492503-trump-claims-he-not-governors-has-authority-on-opening-state.

[2] Sarah Mervosh, Denise Lu, & Vanessa Swales, See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times (Apr. 20, 2020), www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html.

[3] Chalfant, supra note 1.

[4] Antonia Ayres-Brown, Rural Illinois church files lawsuit accusing Gov. J.B. Pritzker of relegating people of faith to ‘second-class citizenship’ by shuttering churches, Chi. Trib. (Apr. 30, 2020), www.chicagotribune.com/coronavirus/ct-coronavirus-pritzker-church-lawsuit-20200430-eekia47qvjbx7cuoqaby7hv4ti-story.html.

[5] Gov. Pritzker Announces Statewide Stay At Home Order to Maximize COVID-19 Containment, Ensure Health Care System Remains Fully Operational, Illinois.gov, (Mar. 20, 2020), www2.illinois.gov/Pages/news-item.aspx?ReleaseID=21288.

[6] Id.

[7] Id.

[8] Robert John Kane & Lawrence E. Singer, Coronavirus (COVID-19), 21 Ill. Prac. § 15:11 (2020).

[9] 20 Ill. Comp. Stat. § 3305/7 (2018).

[10] Id.

[11] Gov. Pritzker Announces Modified Stay at Home Order Will Be Extended Through May to Continue Progress, Illinois.gov, (Apr. 23, 2020), www2.illinois.gov/dceo/Media/PressReleases/Pages/PR20200423.aspx.

[12] Id.

[13] Read the State Representative’s Lawsuit Against Pritzker Over Illinois’ Stay-at-Home Order, NBC Chi. (Apr. 28, 2020), www.nbcchicago.com/news/local/chicago-politics/read-the-state-representatives-lawsuit-against-pritzker-over-illinois-stay-at-home-order/2263044/.

[14] Id.

[15] Id.

[16] Second Illinois Lawmaker Sues Pritzker Over Stay-at-Home Order, NBC Chi. (Apr. 29, 2020), www.nbcchicago.com/news/local/chicago-politics/second-illinois-lawmaker-sues-pritzker-over-stay-at-home-order/2263724/.

[17] Id.

[18] Id.

[19] Brown, supra note 3.

[20] Greg Hinz, Pritzker answers challenge to his COVID stay-home order, Crain’s Chi. Bus. (Apr. 29, 2020), www.chicagobusiness.com/greg-hinz-politics/pritzker-answers-challenge-his-covid-stay-home-order.

[21] Id.

[22] Defendant’s Rule 307(D) Petition for Review of Temporary Restraining Order, Ill. Att’y Gen. 3 (Apr. 29, 2020), illinoisattorneygeneral.gov/pressroom/2020_04/Petition_for_Review_and_Order_Filed.pdf (citing 20 Ill. Comp. Stat. § 3305/7).

[23] Id.

[24] Defendant’s Memorandum in Support of Rule 307(D) Petition for Review of Temporary Restraining Order, Ill. Att’y Gen. 4 (Apr. 29, 2020), illinoisattorneygeneral.gov/pressroom/2020_04/Bailey_Petition_Memorandum_Filed.pdf.

[25] Id. at 9-12.

[26] Id. at 11.

[27] Id.

[28] Id. at 12-13 (citing People ex rel. Barmore v. Roberts, 302 Ill. 422, 427 (1922)).

[29] Id. (citing Ill. Const. art. V, § 8).

[30] Candice Norwood, Most states have issued stay-at-home orders, but enforcement varies widely, PBS (Apr. 3, 2020), www.pbs.org/newshour/politics/most-states-have-issued-stay-at-home-orders-but-enforcement-varies-widely.