I don’t think that Illinois legislator Dan McConchie has the right end of the stick in his criticism of governors exceeding their powers this op-ed in the Wall Street Journal:
As governors across the country destroy their states’ economies in the name of public health, there is shockingly little oversight of their actions.
In my state of Illinois, Gov. J.B. Pritzker has locked down the state, closing swaths of commerce and limiting the movement of citizens in response to Covid-19. These actions have been challenged in court by my colleague, state Rep. Darren Bailey, and a judge initially agreed to a temporary restraining order on the governor’s emergency measure, but only as they apply to Mr. Bailey. The rest of the state remains under lockdown by the governor’s orders, which continue without oversight.
Normally, the three coequal branches of government impose checks and balances to ensure accountability. Power is divided to allow recourse if one branch grows too intrusive or authoritarian. And while many people have sued governors in recent weeks to demand judicial redress, the judicial branch is reactive in nature, usually declining to disrupt legally plausible actions during a crisis. The legislative branch is a far better source of timely restraint.
His problem is not with the governor but with the legislature and the judiciary. In Illinois the governor’s emergency powers are defined and restrained by 20 ILCS 3305/7:
Sec. 7. Emergency Powers of the Governor. In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers; provided, however, that the lapse of the emergency powers shall not, as regards any act or acts occurring or committed within the 30-day period, deprive any person, firm, corporation, political subdivision, or body politic of any right or rights to compensation or reimbursement which he, she, it, or they may have under the provisions of this Act…
I agree that the governor must conform with the provisions of the law but the issue doesn’t end there. The judiciary needs to articulate the law and the legislature needs to be willing to amend the law or to ensure that it is enforced. I see a mutual longing for despotism among all three branches.
I see it as largely a partisan issue. If Republican Bruce Rauner were still governor, he’d’ve already been shut down by the legislature.
However, I agree with this:
Here in Illinois, some of Gov. Pritzker’s limits on commerce can hardly be defended as “based in science.†Even under his latest Executive Order released Thursday, I can visit Target to buy furniture, Walmart to buy clothing or my grocery store to buy flowers. But I can’t go inside a furniture store, a clothing store or a florist, even though those stores could easily adopt the same safety measures required of the retail outlets permitted to stay open.
Oh, they’re based in science all right. Political science and sociology. Keeping Target and Walmart opened prevents people from rebelling against the lockdown and enabling those stores to continue business as usual is easier to administer than forcing them to close non-essential departments. They’re open for the same reasons that non-emergent city services continue.
Government at all levels is providing enormous subsidies to big businesses while putting small businesses out of business. Half of all Americans work for small businesses. Don’t be surprised if, when the lockdowns end, there’s nothing for people working for those businesses to return to.
Even if the judiciary intervenes on behalf of the citizens of Illinois and finds against Pritzker, the situation reminds me of Andrew Jackson’s infamous quote in response to the Supreme Court’s decision re Worcester v. Georgia (over the first Gold Rush in America, which eventually resulted in the Trail of Tears):
“John Marshall has made his decision; now let him enforce it.â€
Pritzker has executive power, thus could order the police to ignore any and all judicial decrees. Illegal, but since he’s already apparently violating the state Constitution he won’t care. Or he could go Whitmer’s route and effectively prevent the judiciary from even issuing stays by stopping the machinery of the judiciary.
By keeping some parts of the economy locked down preferentially he and the other gubernatorial tyrants are trying to boil the frog slow enough to thoroughly cook it. Daring POTUS to intervene so that they can call HIM tyrant.
I read the State’s brief to the Appellate Court, and think its probably 50/50 either way. The main issue is that a standard rule of statutory interpretation is that the court should give meaning to all of the words and phrases in a statute, not treating any as a nullity. Its not clear how the Governor’s interpretation does not treat the phrase “for a period not to exceed 30 days” as a nullity.
The State argues that the language only requires the Governor to announce at least every thirty days that the emergency still exists. This implies the order itself forms a sort of check and balance in the public sphere without necessitating legislative action. It actually goes further, because the emergency powers would essentially stay in effect unless and until both legislative chambers could muster a three-fifths majority to overturn. Even Roman dictators had temporal limits for exercising emergency powers.
Mainly though the textual argument is from silence; the legislature did not expressly say that he could not do this, though it can also be pointed out that the language does not say he could declare a disaster to be continuing either.
I didn’t get into it but the State’s argument goes well beyond the common law meaning of “emergency powers”. I know it’s expedient. But, as you note, “not to exceed 30 days” is pretty darned clear.
I think that’s a pretty good interpretation. The problem I see is that without clear standards for ending the lockdown the temptation will be to extend it indefinitely. Or until the state runs out of money which will come first.
It seems to me the state is making a novel argument that flies in the phase of a couple of hundred years of American jurisprudence. If the statute does not expressly grant the governor the powers he’s claiming, he doesn’t have them. Not if it doesn’t say he doesn’t have them he does.
I think its more that the Governor is exercising the power granted him, but not seeing any strings attached because the strings have to be just perfect. Just as a matter of common sense, legislators don’t grant broad powers to the executive without restrictions or without a good idea of how they would be used (I suspect if the legislature reconvened they’d give him what he wants for this crisis).
The National Governor’s Association:
“In most states, emergencies cannot be declared indefinitely. In five states, a state of emergency can last for 60 days or more. In 16 states, a state of emergency can last for no more than 30 days. In 10 states, a state of emergency must expire in less than 30 days. In 14
states, these time limits can be extended. In 12 states, the legislature can terminate a state of emergency.”
http://www.npstc.org/documents/070314GovGuideHS.pdf
Spare me the intellectual noodling over constitutional law. The people are going to tire. Rich, fat man governor vs starving man. And then the real debate will unfold.
What do all of the following have in common:
A hydraulics component manufacturing company, a company that makes beer and personal products cans, a bakery, an electronic components company (mil), a concrete structures company and a highway safety products company.
All have been deemed essential. Figure that one out – hence my frustrations.
It gets worse. The PPP loans are only for small businesses. All but one of ours is a small business. However, what qualifies as “demonstrated need.†We have been very careful, and employed Washington based counsel to help with that one, at significant cost and concerns over legal repercussions. Hence my frustration……
Just another byproduct of this mass quarantine strategy.
The US is a highly integrated economy, so if some states remain in lockdown while others open up, the open states will still see a depressed economy. although perhaps not as severe. California, Illinois, New York and a few others can still push the whole country into deep recession.
A side note. The IRS intends to treat the small business loans as taxable income.