Outside the Law

The United States Department of Justice has filed a statement of interest challenging Illinois Gov. J. B. Pritzker’s decrees in the state under emergency powers:

In response to the COVID-19 pandemic, the Governor of Illinois has, over the past two months, sought to rely on authority under the Illinois Emergency Management Agency Act to impose sweeping limitations on nearly all aspects of life for citizens of Illinois, significantly impairing in some instances their ability to maintain their economic livelihoods. According to the lawsuit, the Governor’s actions are not authorized by state law, as they extend beyond the 30-day time period imposed by the Illinois legislature for the Governor’s exercise of emergency powers granted under the Act.

Representative Bailey brought his case in Illinois state court and elected only to assert state law claims. On May 15, the presiding state court judge ordered Bailey to file his motion for summary judgment by May 18 and instructed the Governor to respond to it by May 21. A hearing on the motion for summary judgment was scheduled to take place in state court today. Yesterday, however, instead of responding to Bailey’s motion for summary judgment, the Governor removed the case to federal district court.

“The Governor of Illinois owes it to the people of Illinois to allow his state’s courts to adjudicate the question of whether Illinois law authorizes orders he issued to respond to COVID-19,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “The United States Constitution and state constitutions established a system of divided and limited governmental power, and they did so to secure the blessings of liberty to all people in our country. Under our system, all public officials, including governors, must comply with the law, especially during times of crisis. The Department of Justice remains committed to defending the rule of law and the American people at all times, especially during this difficult time as we deal with COVID-19 pandemic.”

“However well-intentioned they may be, the executive orders appear to reach far beyond the scope of the 30-day emergency authority granted to the Governor under Illinois law,” said Steven D. Weinhoeft, the U.S. Attorney for the Southern District of Illinois. “Even during times of crisis, executive actions undertaken in the name of public safety must be lawful. And while the people of Illinois must be physically protected from the effects of this public health crisis, including by complying with CDC guidelines their constitutionally guaranteed rights and liberties must be safeguarded as well.”

In its statement of interest, the United States explains that this dispute belongs in Illinois state court, and that Representative Bailey has raised substantial questions as to whether the Governor’s current response to COVID-19 is lawful. Although the complaint does not raise any federal constitutional claims, the statement explains, “It is up to the Illinois courts to rule on Plaintiff’s claims, which, because of the sweeping nature of the Orders, may affect millions of lives and raise significant constitutional concerns in other litigation.” Even in the face of a pandemic, states must comply with their own laws in making these sensitive policy choices in a manner responsive to the people and, in doing so, both respect and serve the goals of our broader federal structure, including the guarantee of due process in the U.S. Constitution.

I am unfamiliar with “statement of interest” under the law except as it relates to amicus briefs but this sounds like a “shot across the bow” to me.

IMO Illinois’s political leadership has systematically bungled its handling of the COVID-19 crisis both in what it has done, in how it has done it, and in what it hasn’t done. Back in March the legislature should have enacted appropriate legislation to empower it to do its work remotely. Actually, that should have been done 20 years ago. The categories of “essential workers” are far too broad, diluting the lockdown directive. There have been plenty of threats and precious little enforcement of the directives. Business as usual should not have been allowed to proceed for mail order or e-commerce orders. When it was obvious weeks ago how limited the effects of the lockdown have been, additional measures should have been put in place. And so on.

7 comments… add one
  • PD Shaw Link

    As I think I commented yesterday, the idea of removing the state lawsuits to federal court seemed bizarre and intended to be a delaying tactic. The US Attorney basically argues that there are no grounds for removing the lawsuits to federal court, and while there are federal constitutional implications involved, there is a state statutory limitation (30 days) that would resolve the questions without need to address constitutional issues. The federal government needs to defer to state interpretation of its own laws.

    So this looks to me like a critical mistake by the Attorney General’s Office in seeking a removal. Recall that the State’s Attorneys asked guidance from the AG regarding their concerns about federal civil rights liability for enforcing the emergency order. The AG didn’t really answer the federal issues, but opined that the order would probably not withstand judicial review. So the Governor is trying to force the state’s attorneys to enforce his constitutional authority by threatening to withhold federal money, which would appear to expose them to all kinds of federal civil rights lawsuits that have attorney fee provisions.

  • PD Shaw Link

    Statement of Interest: I’m not familiar with this statutory provision, but in state matters, the Illinois Attorney General has an interest in any litigation that purports to invalidate a state statute as constitutional.

    For instance, if there is the buyer sues the seller in a private contract dispute for failing to comply with statutory notification requirement, then the seller has to give notice the Attorney General if he intends to claim that the statute is unconstitutional. The notion here is that the AG is the chief legal officer of the state and should be able to assert the state’s interest in the law’s validity or interpretation that may not be adequately addressed by private parties.

    Slightly different here, but the US Attorney is saying that there are potential federal constitutional issues involved here involving quarantines, but the federal government wants those resolved first by the state courts. Don’t make our job harder by generating federal court opinions on the federal constitution if they are not necessary.

  • TarsTarkas Link

    Dave, am I understanding you correctly in that you seem to be implying that your problem with the lockdown was (1) it wasn’t enforced very well and (2) it should have been more complete? Are you advocating that Pritzker should have completely shut down everything except for food? And if so until when? The data is out there. It’s not ordinary people or even you or me, although both of us are more at risk than most (60, type 2 diabetic). It’s older people with serious existing illnesses in homes that are most at risk and who are dying. Florida seem to have handled it right by targeting those most at risk while not jamming on the brakes on the rest of the populace.

  • Dave, am I understanding you correctly in that you seem to be implying that your problem with the lockdown was (1) it wasn’t enforced very well and (2) it should have been more complete?

    No, not exactly. My view is that when you set out to take Vienna, take Vienna. If you’re going to hobble Illinois’s economy, make sure you accomplish what you intend to accomplish by hobbling Illinois’s economy. Not to exert your greatest efforts to ensuring that your policies are effective through timidity or preferring popularity or any other reason is unconsionable.

    Pritzker and Lightfoot obviously believe that the lockdown is essential whether to protect the healthcare system from being overwhelmed (of which there is little sign in Illinois) or for some other reason. Why is the enumeration of “essential services” so broad? Why aren’t groceries and drug stores limited to delivery-only? Why do non-emergent city services continue to be performed? Why aren’t UPS and FedEx being limited to delivering food and pharmaceuticals? Why aren’t people being ticketed for violating social distancing or not wearing face masks? The list is huge.

    I also think that back in March Pritzker should have sent the Illinois State Police to bring the members of the Illinois legislature back to Springfield forcibly to enact legislation enabling the legislature to continue to conduct state business remotely. But that’s another subject.

  • Guarneri Link


    “Why is the enumeration of “essential services” so broad?” Etc etc.

    Um, Dave. Because the stated objectives weren’t the real objectives.

  • Guarneri Link

    This report from the CDC puts the key statistics right at the Stanford estimates I cited weeks ago. (And were panned)

    Wonder if pols and media will let this see the light of day. Lots of experts doing the moonwalk these days.


  • steve Link

    That puts the fatality rate at about 4 times that of the flu and the R value significantly higher. (Estimates on R value of flu vary a lot, but lets say 40%-50% higher.) This doesnt take into account that we have gotten better at treating Covid even without effective therapeutic drugs. A bad flu season is when the vaccine doesnt work very well, say only 20% coverage, tho you do get some partial coverage. Add up and multiply all those numbers and compared with a bad flu season of 60,000 deaths we should be expecting 400k-500k, absent mitigation. (Note the nearly 5% hospitalization rate in the 50-64 age group and 7% for those over 65. The over 50 group makes up well over 20% of our labor force.)


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