When Gov. Pritzker proclaimed a ban on assemblies of 1,000 people or more and ordered that all schools be closed, my immediate reaction was to wonder what gave him that authority? There is nothing in the Illinois Constitution granting the governor that authority but an expansive reading of Illinois law (20 ILCS 3305/7) does. Following a declaration of emergency (which he had previously done):
(4) On behalf of this State to take possession of,
and to acquire full title or a lesser specified interest in, any personal property as may be necessary to accomplish the objectives set forth in Section 2 of this Act, including: airplanes, automobiles, trucks, trailers, buses, and other vehicles; coal, oils, gasoline, and other fuels and means of propulsion; explosives, materials, equipment, and supplies; animals and livestock; feed and seed; food and provisions for humans and animals; clothing and bedding; and medicines and medical and surgical supplies; and to take possession of and for a limited period occupy and use any real estate necessary to accomplish those objectives; but only upon the undertaking by the State to pay just compensation therefor as in this Act provided, and then only under the following provisions…
I had no doubt that the governor had the authority to close the Chicago Public Schools, for example, but I think that ordering private schools closed is a different story.
I would appreciate knowing of any other statutes, case law, or the common law providing the governor with the powers he’s exercising.
As I’ve noted before I think these are bold moves by a state that can’t pay its bills as it is and is teetering on the brink of being unable to borrow.
When I bring up details like this there are those who chide me that this is an emergency and you can’t think of stuff like this in an emergency. I think in an emergency is precisely when you should think about things like this and that Illinois is opening an enormous can of worms, the effects of which will be felt for years to come.
These are the times that try men’s souls.
I think the relevant provision is probably 20 ILCS 2305/2, which gives the Illinois Department of Public Health the power to:
“order a person or group of persons to be quarantined or isolated or may order a a place to be closed and made off limits to the public to prevent the probable spread of a dangerously contagious or infectious disease, including non-compliant tuberculosis patients, until such time as the condition can be corrected or the danger to the public health eliminated or reduced in such a manner that no substantial danger to the public’s health any longer exists.”
The next provision indicates that normally consent or court order is required, but if “in the reasonable judgment of the Department, immediate action is required to protect the public from a dangerously contagious or infectious disease,” then the timing requirements are relaxed.
So I assume at some point a court order will be sought and gained that meets the requirements in that provision, which also require the court consider guidelines from CDC and WHO. The main issue with this provision is that written notice has to be given to the owners of the place, and presumably the State Superintendent has these name and addresses. (Unlike, for example, if the closure was ordered of all taverns)
There may be other provisions than the one I found. States have broad police powers which the federal government does not.
These niceties are precisely the sorts of things I have in mind. Thanks for the pickup on this provision of the law. I still think that actions are likely to be brought against the state for these decisions. They’re going to be very hard on some companies.
And your point about the broad police powers of state as opposed to the federal government is a point I’ve made many times.
If no private school or company challenges this then it should be OK, no?
Steve
Update- We are finally getting some real numbers of tests available in our area starting this week. What our ED has been doing is sending anyone with suspected COvid and mild symptoms home on quarantine without testing. Only those who got admitted (and a few other exceptions) were getting tested. Since we finally have tests coming in, I believe from private lab, we will test many more. (The number I heard driving in is that we are testing 15 out of every million of our population. In South Korea it is 4000 out of every million.) It has been truly galling to watch POTUS lie about this on TV, then have his minions support his lies.
This is creating all kinds of safety issues. We have limited supplies, so how do we know with whom we should use our limited number of N-95 masks?
On the plus side, I have my geek squad (a few of my guys were engineers before med school) working with Biomed at ways we can greatly, we hope, extend the life of the N-95s.
Steve
“minions support his lies”
You do understand it’s politics. The competition for power goes on in spite of, (accelerated by?) the current crisis. Politics is a blood sport. Trump understands this. He won’t show weakness. That does not mean he couldn’t have done better. Minions. Do you want to be a Biden minion at this point?
Authoritarianism is not okay even when it’s expedient. Even if it goes unchallenged.
I leave the reverse question.
Is there a possibility of liability for organizations that remain open despite recommendation from public health officials that they close. Can people who get infected at those organizations sue?
Offhand, I’d say “no”. It takes more than a recommendation to become liable. And in general companies are not responsible if you catch a contagious disease.
Contrariwise in a civil trial before a jury anything can happen.
The legal challenges will not be over imposing quarantines – but when to lift them.
I agree with that to the extent that I think that governors will want to continue exercising their “emergency” powers long after any statutory limitations.
Put another away in Illinois, absent legislative action, the state of emergency will expire in the middle of April. I seriously doubt that new cases of COVID-19 will have started decreasing by the middle of April.
Anecdotes from S Florida. aka Controlling Americans is like herding cats.
Our daughter drove back from school; its closed. We have chosen to lay fairly low. The usual hygiene stuff; we’ve stocked up on food and other supplies. We will stay away from crowds to the degree possible, being cognizant of “social distance,” and remain in house or in the housing community until this takes more shape. I see a lot of reading, Netflix watching and long walks in my next few weeks future. As of now Florida has very, very few reported cases.
However, while going to the store this AM I passed a local diner that is patronized mostly by older people. There was a waiting line out the door. Packed. I also passed an IHOP. Lot was full and people appeared to be waiting outside. Will this change after penetration accelerates? Who knows. But this is the activity and attitude that can make this a self fulfilling prophecy.
Heard while at the pool: “hey, my friends have been waiting to come down here at spring break so they are coming……..on a plane….this thing is totally overblown.”
My niece, also home from school and a long time resident of Naples, told my daughter that her friends were out at the bars last night……..and they were full. I can only imagine the restaurants were too.
So far anyway, I see panic buying and a lot of me first thinking, but no evidence of the best defense of all, quarantine/cutting off the transmission mechanism.
I think its all Trump’s fault.
Update on hospital front-
Stopping elective surgery. Tough decision since not that many Covid cases in our area, but done so we can help stop the spread. Big financial hit. However, we still need to do lots of surgery cases. Some cancer cases, cardiac, vascular etc just cant wait. However we, like the entire country, have a shortage of PPE issue. Is that appendicitis pt with a cough 102 degrees because he has Covid or is it the hot appendix? If we had enough texts and could get them back quickly we would just test everyone. What do we do with asymptomatic patients? Can we assume they dont have Covid and contaminate ORs , the OR ventilators etc, or are we just cautious and use PPE gear for everyone, and run out of gear? What do we do then?
We are recruiting non critical care doctors to do critical care work, ones we think will be appropriate like anesthesiologists. Will have Covid for dummies classes. (Been so long since did any critical care I will have to attend.) We have an electronic record system. We will have to have dozens of people trained (probably hundreds) and access changed since different specialties have different levels and kinds of access. Still dont know what we will do with older doctors and nurses. (Probably just treat like everyone else.) Pregnant ones also an issue. (Probably have them avoid Covid pts.)
If you are inclined towards religious thoughts please pray that this isn’t so bad after all, someone makes or finds more PPE gear and we finally have all of those tests arrive.
Steve
Thanks for that update, Steve. I will, indeed, pray for us all.
Postponing elective surgery means that the revenue is being time-shifted. You may not have that revenue today but you may in 90 days time. Cold comfort, I realize. Increased revenue due to COVID-19 itself will offset some of the loss. It’s grim to think of but the outbreak may provide a net benefit for you.
It may all be time shifted, but I suspect we lose some cases to people who go to hospitals that are not stopping elective cases. Meh. Our payment structure is complex but neither I nor my group will actually benefit, we may even lose a bit but we will be OK.
As an aside it always surprises me how many of my people live paycheck to paycheck. One of my guys who is married to another doctor and approached me for my opinion on how all of this will affect our pay as it would be difficult for him to miss even one paycheck. This is one of those things I would like to blame on millennials, but I have always seen this.
Steve
Not me. I know a lot of docs and most I know are, essentially, living paycheck to paycheck.
Illinois is ordering all restaurants and bars to close, except for carry-out and delivery, starting tomorrow for two weeks. We won’t miss eating out, but I will probably go to the grocery store tomorrow to stock up on some convenience items for the kids that would normally not be eating at home. Hope some stuff they’ll eat is left; my wife said bread is scarce.
The working poor are going to be hit hard by this.
I suspect you have your hands full, steve. Hope you are holding up well, and good luck.
Thanks Drew. Have been on phone or computer for many hours this weekend. Awaiting results of important meeting. Then back to work. At least we have really good people. I have had a bunch of texts and emails saying that if I needed them to work outside of their normal roles they would do whatever they could to help.
Steve