For the first time, the Department of Justice will put its considerable weight behind an effort to challenge the legality of a governor’s stay-at-home order.
On Friday, the Justice Department filed a Statement of Interest in the case of a state legislator suing the governor over his restrictive policies, claiming he doesn’t have the authority.
“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,” the department said in a statement.
The government is siding with Republican state Rep. Darren Bailey who filed the initial suit in state court earlier this month. He argued that Pritzker’s executive order violates a 30-day limit on the governor’s emergency powers put in place by the state legislature.
The department is also challenging Pritzker’s moving the lawsuit from state court to federal jurisdiction. Attorney General Kwame Raoul (D-Ill.) justifies the move by claiming the suit because it involves federal constitutional rights of free exercise of religion and due process.
But Eric Dreiband, assistant attorney general for the DOJ’s Civil Rights Division, also believes the governor’s power is limited.
Eric Dreiband, assistant attorney general for the Civil Rights Division, said in a statement that Pritzker owes it to Illinois residents to allow the state courts to determine if the state’s laws allow orders he issued in response to the pandemic.
“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,” Dreiband said.
If it’s a question of law, Bailey looks to win going away.
“However well-intended 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,” Steven D. Weinhoeft, U.S. attorney for the Southern District of Illinois, said in a written statement. “Even during times of crisis, executive actions undertaken in the name of public safety must be lawful.”
Bailey last month filed the lawsuit challenging Pritzker’s order, which included shutting down most businesses and churches. Clay County Judge Michael McHaney ruled Bailey was not bound by the order.
Rep. Bailey is looking to lift the restrictions for all Illinois residents and let the people decide how best to protect themselves.
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