Governor Pritzker's Powers are not Unlimited

The Illinois Legislature has conferred upon the Governor powers to deal with "emergencies and disasters" in the Illinois Emergency Management Act, 20 ILCS 3305. So, are the Governor's pandemic powers unlimited? In a word, "No!"


Whatever "emergency" actions the Illinois Governor takes during the pandemic or during an Antifa riot, his actions must be taken consistently with the the U.S. and Illinois Constitutions, and his oath of office by which he promised to "support the Constitution of the United States, and the Constitution of the State of Illinois, and ... faithfully discharge the duties of [his] office of . . . to the best of [his] ability.” Each Constitution contains its own Bill of Rights.


If you read both Constitutions, you will find no language in either constitution that allows for suspension during an "emergency" of either the U.S. or the Illinois Bill of Rights. Both Constitutions allow suspension of Habeas Corpus "in cases of rebellion or invasion when the public safety may require it. But that is as far as they go.


The Illinois Constitution provides, "The legislative power is vested in a General Assembly consisting of a Senate and a House of Representatives ...." Art. 4, §1. Unlike Congress, which has only the powers explicitly given it by the U.S. Constitution and the additional powers needed to carry out those stated powers, a state legislature has all legislative powers that are not [specifically] denied by the state or federal Constitution.


Since it has plenary legislative power, the normal challenge to Illinois Legislative action is not that the legislature exercised powers not granted to it by the Illinois Constitution. Rather the challenge is normally that the legislature improperly delegated its legislative power. But while the General Assembly may not give away its legislative powers, it may set up a general statutory scheme designed to reach a result and leave details for reaching it to a governmental agency. Such a delegation would be subject to oversight by the General Assembly and review by the courts to determine whether the agency  has overstepped its authority. But an agency may not be left free to carry out the legislative purpose as it sees fit without any standards, or allowed to determine to whom a law will apply.



Under the Illinois Constitution, the legislative and executive branches are separate, and "No branch shall exercise powers properly belonging to another. Art. 2, §1. As such, there are limits to how much power the legislature can give to the Governor. Moreover, the Illinois Legislature cannot make laws or delegate powers where doing so would be prohibited by either Constitution or either Bill of Rights.


The Illinois Constitution provides that "The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws." Art. 5, §8. In that regard, the Legislature has passed the Illinois Emergency Management Act, and the Governor has a duty to "faithfully execute" it. But the question remains: how much power the Legislature can delegate? Clearly, even given a Legislative delegation of power to the Governor, the Governor can not exercise executive power if the Legislative grant thereof, or if his exercise of those delegated powers would contravened either Constitution or Bill of Rights.


So, can a governor, under a legislative grant of "emergency powers" order a shut down of legitimate businesses and permanently put them out of business? Materially damage those businesses?

Art. 1, §1 of the Illinois Constitution borrows from the Declaration of Independence, and states the "Inherent and Inalienable Rights" of the people of Illinois: "All men are by nature free and independent and have certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed."

Although that clause has been held to be "hortatory," it makes rather clear that Illinois government exists to protect property; not destroy it.

Art. 1, §2, however, is mandatory. It provides, "No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.


When a Governor decrees that all "non-essential" business shall be shut down, where is the due process hearing? Where is the equal protection when cannabis dispensaries are allowed to remain open when restaurants and barbers shops are destroyed by being forced to stay closed?


And Art. 1, §15 provides, "Private property shall not be taken or damaged for public use without just
compensation as provided by law. Such compensation shall be determined by a jury as provided by law." Where is the compensation?


I will be very surprised if we do not see a plethora of "reverse" eminent domain actions* for Illinois taking or damaging property without payment of compensation. And perhaps some Federal Civil Rights actions.


*In an eminent domain case, the state takes the property and asks that a jury assess the damages. In a reverse eminent domain case, the property owner asks for a jury to assess the damages where the state has taken or damaged the property but not paid the damages.

Originally published in the Moline Dispatch and Rock Island Argus on August 21, 2020.

Copyright 2020, John Donald O'Shea

Americans Don't Get Ruled!

As a former public official, my tendency it to assume that public officials do their best to provide us with accurate information. I've always presumed the president or governor, surrounded by expert fact providers, has better information than I do.

Not any more. Here are two reasons:

                                                                        1. 

Gov. J. B. Pritzker's coronavirus press conferences and orders strongly suggest I would do better to listen to the Three Stooges.

Consider this April 20 press conference:

Reporter: "Earlier this week, the state reported the death of a teenager in Cook County. ... Can you tell us if the teenager in question had underlying conditions?"

(Gov. Pritzker was at the podium and he deferred to Dr. Ngozi Ezike, director of the Illinois Department of Public Health).

Dr. Ezike: "I don't have that information at my disposal at this time. I know that we have had people of all age groups die. I just want to be clear as to the definition of death by COVID. The case definition is very simplistic. It means that at the time of death, it was a COVID positive diagnosis."

Reporter: So if you are killed in an auto accident or by falling off a cliff, if you are positive for COVID, it's counted as a COVID death?

Dr. Ezike: "It means if you were in hospice and had already been given a few weeks to live, and if you were also found to have COVID, that would be counted as a COVID death. ... Even if you died of a clear alternate cause, but you had COVID at the same time, it's still listed as a COVID death. So, everyone who's listed as a COVID death doesn't mean that that was the cause of the death, but they had COVID at the time of the death."

You wonder why the numbers can't be trusted? If a teenager is shot dead while strolling down Michigan Avenue, that's listed as a COVID death?

                                                                        2. 

Then, on April 22, Chief Judge Michael McHaney, sitting in Clay County, Illinois, in his ruling in Mainer v. Pritzker, pointed out the bizarre inconsistency of the governor's rules designating certain businesses as "non-essential" and others as "essential."

The judge accuses the governor of making "arbitray and capricious" judgments:

"I won't get COVID if I get an abortion, but I will get COVID if I get a colonoscopy."

"If I go to Walmart, I won't get COVID but, if I go to church, I will."

"Selling pot is essential, but selling goods and services at a family owned business is not."

The judge points out that cannabis sales, illegal in Illinois until a few months earlier, are "essential," but a "family-owned business in existence for five generations is not."

The judge finds "insanity" in presuming that a family of six "piling in their car" and driving to the lake will not get COVID, but they will if they pile into their boat.

Similarly the judge notes the presumption that "four people [who] drive to the golf course [will] not get COVID, but if they play in a foursome, they will." 

The judge wonders why kids' summer sports programs are cancelled when "we are told that kids rarely contract the virus and sunlight kills it!"

Further, he is unable to understand why "murderers" should be "released from custody" for fear of the virus, while owners of small businesses are threatened with being taken into custody if they open their businesses in an "attempt to feed their families."

Finally the judge criticizes the governor for behaving like a "divine right king" in the making of rules that bind the people of Illinois, while exempting himself and his family from obeying those same rules. 

"The defendant in this case orders you to stay home and pronounces that, if you leave the state, you are putting people in danger. But his family members traveled to Florida and Wisconsin because he deems such travel 'essential.'"

Judge McHaney then sums up his "indictment" of the governor.

"When laws do not apply to those who make them, people are not being governed, they are being ruled.

"Make no mistake, these executive orders are not laws. They are royal decrees. Illinois citizens are not being governed, they are being ruled. The last time I checked, Illinois citizens are also Americans and Americans don't get ruled.

"The last time a monarch tried to rule Americans, a shot was fired that was heard around the world. That day led to the birth of a nation consensually governed based upon a document which ensures that on this day in any American courtroom tyrannical despotism will always lose and liberty, freedom and the Constitution will always win."

But if the case ever reaches the U.S. Supreme Court, will Mr. Chief Justice John Roberts agree? Probably not, given his concurring opinion in South Bay United Pentecostal Church v. (California Gov.) Gavin Newson.

Copyright 2020, John Donald O'Shea

Published in the Moline Dispatch and Rock Island Argus on August 9, 2020