Department of Justice Files Statement of Interest Challenging the Legality of Illinois Governor's Sweeping COVID-19 Orders

The Department of Justice today filed a statement of interest in an Illinois federal court in support of a lawsuit filed by Illinois state representative Darren Bailey challenging certain actions of Governor J.B. Pritzker in response to the COVID-19 pandemic.

The Statement of Interest is part of Attorney General William P. Barr’s April 27, 2020 initiative directing Assistant Attorney General Eric Dreiband for the Civil Rights Division, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic. 

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. 

The federal case is Bailey v. Pritzker, No. 3:20-cv-474.