Constitutional Expert: Legislature Needs to Clarify Governor's Executive Authority
A University of Illinois Law professor and expert on the state constitution says multiple conflicting court rulings on the Governor’s executive authority means the legislature needs to step up and pass legislation clearing up any uncertainty.
After the Illinois Supreme Court denied Governor JB Pritzker’s attempt to clarify his executive authority under the constitution, a top expert believes it may fall on the legislature to clear up any conflicts.
Scott Szala is a retired Chicago attorney and adjunct professor at the University of Illinois College of Law, where he teaches a course on the Illinois Constitution.
With differing rulings on the Governor’s authority under the Illinois Emergency Management Act and the Illinois Supreme Court passing on clarifying the questions last week, you can call the situation clear as mud.
Szala says while the current law and constitutionality of the Governor’s actions are under debate, there needs to be an understanding of the powers a Governor has in the event of an emergency.
“I think most people would say the Governor, just like the President, has to have certain repository powers in emergency situations,” Szala said. “Sometimes you have to act quickly, and I think most people are willing to give the executive certain leeway in that particular regard. The question is when it goes on and on without explicit legislative authority, does that present a problem?”
Szala says the General Assembly should have worked with the Governor in 2020 to clarify his powers under the Illinois Emergency Management Act to prevent questions and misunderstanding around his repeated Executive Orders. But, with the exception of a couple of days in late May, the General Assembly was gone from Springfield for more than nine months, and many lawmakers seemed unwilling to travel to the Capitol at the height of the pandemic.
“At some point, the legislature is just going to have to deal with this, regardless of what party is holding the Governor’s office,” Szala said. “I think you could have made a good argument and then just clarified the powers and it wouldn’t have taken a lot to do that. Now the Supreme Court looks at this and it still isn’t clear.”
Every Governor since the Illinois Constitution was adopted in 1970 has used executive orders or disaster declarations at some point in their term in office. Szala says that’s usually considered a short term power, but the ongoing extension of those orders is where either the courts or legislature need to step in.