Does Pritzker Have the Authority to Close Restaurants? It’s Complicated.
Illinois Gov. JB Pritzker announces a shelter-in-place rule to combat the spread of the Covid-19 virus, during a news conference Friday, March 20, 2020, in Chicago. (AP Photo / Charles Rex Arbogast)
Every time a Republican politician posts to social media about Governor JB Pritzker’s actions closing bars and restaurants to indoor service around the state, throngs of respondents voice their belief Pritzker does not have the constitutional authority to take such actions.
Vox Populi aside, it’s unlikely many social media commenters have taken constitutional law classes, and the real answer to the authority the Governor has may not be so clear.
The idea that Pritzker does not have the authority to take multiple executive actions on the pandemic was reiterated during a news conference yesterday by Rep. Avery Bourne (R-Morrisonville).
Bourne, who was in law school when she was appointed to the House in 2015, says the Governor’s actions exceed the authority outlined to him under the Emergency Management Agency Act.
“The way I read the Illinois governor’s executive authority is that he has the authority to issue one executive order in an emergency,” she said. “He has issued executive order after executive order instead of consulting, formally, the legislature. The legislative role in the Illinois constitution is to make the laws, the governor’s authority is to enforce them. We do not have a law passed on how to deal with the COVID-19 pandemic. He needs to call the legislature back, which he has the authority to do, and formally consult the legislature on this pandemic and on the response. Period.”
The legislature did not take up the issue when it returned for a short time in May.
Governor’s spokesperson Jordan Abudayyeh disagreed with Bourne’s perspective.
“Both state and federal courts disagree with that notion,” she said.
We sought clarity from Scott Szala, who spent 35 years at the Winston & Strawn law firm and now teaches constitutional law classes at the University of Illinois.
He says the issue of the Governor’s authority is likely going to have to be settled by the state Appellate Court or Supreme Court.
“Most of the Circuit Court decisions have favored the Governor and there’s a couple that have not favored the Governor,” Szala said. “So, until there’s an Appellate Court decision or a potential [state] Supreme Court decision, we won’t know what the ultimate decision is.”
Szala says prior Governors, like Republican Bruce Rauner and Democrat Pat Quinn, issued consecutive emergency orders on issues like flooding, though the legality of those orders was never challenged.
But Szala says those questioning the Governor’s authority are doing more than playing politics.
“There’s a significant issue,” he said. “You can read the interpretation of the 30 days to say ‘well, that’s all you get is 30 days.’ You can also read it as that it’s silent on the issue as far as renewal, and you would expect that somebody has to make a decision.”
Szala says Bourne’s position is reasonable, but not clear. But he says the Governor’s argument that changing conditions in the pandemic warrant new executive orders is also reasonable.
Suits filed by Rep. Darren Bailey (R-Xenia), who won his case earlier this year in a Clay County Court was originally appealed by the Attorney General, but Bailey withdrew the review before the cases were heard by the Appellate Court. Pritzker has repeatedly won most challenges to his authority around the state.
A Kane County judge earlier this week granted a temporary restraining order allowing a Geneva steakhouse to stay open, but the Attorney General is appealing the order. Marco Lappo, a pizzeria owner in suburban Park Ridge, confirmed to The Illinoize Thursday night he and four other Park Ridge restaurant owners have sued the Governor over the closure to indoor dining and bar service.
While the pandemic rages on, the court cases could come to a head all at once in an Appellate District courtroom or in the state Supreme Court.
But is there a “yes” or “no” answer to the Governor’s authority on the issue? Szala says, not surprisingly, it isn’t clear.
“For a certain period of time, [a governor] has it within the 30-day time period,” he says. “But it’s an unresolved issue whether [a governor] can go beyond the 30 days. Most trial courts have decided that he does have that authority, but there’s a split. Normally, when you have a split of authority, most often its going to be resolved with a review in court.”
Meanwhile, bars and restaurants will fight for survival, positive cases continue to rise, and the legal battle isn’t settled.
“It’s a thorny issue,” Szala says.
