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July 12, 2024

The proverbial question: Can the Governor do that?

By Kirk Allen & John Kraft

On March 21, 2020

Illinois (ECWd)

The China virus, “COVID -19”, is impacting people’s lives around the globe.  As government officials begin invoking emergency declarations across the country people start asking questions.

Once the Illinois Governor JB Pritzker started issuing executive orders, the questions rolled in each and every time.  Can the Governor do that?

While the answer may not be simple, the bigger question is why did it take an emergency for people to start questioning what their officials can or can not do during an emergency?  For example, the Emergency declaration story we broke on the Champaign Mayor went viral and got national attention, never mind the fact the powers invoked were adopted in 2006.  Where were the people in 2006?

As it relates to the Illinois Governor, the Illinois Emergency Management Act was passed into law during the 87th General Assembly (1991-1992).  The specific powers granted to the Governor are found in section 7, and while there have been a couple of minor changes since then, those currently being invoked have been on the books for some time.  Where were the people in 1991-1992 when this was passed?

We published this article on March 15th addressing people’s due process rights.  The most basic concept of our laws is simple, the government only has the power granted.  With that in mind, the question that has to be asked when you see your government doing something is what statute gives them that power?

This simple process is even being applied by a Harvard Law Constitutional expert who was recently quoted.   An article published by The Hill yesterday covers that simple principle of government only having powers granted. The topic raised in the article was a potential National Shelter in Place order by the President.

“I don’t think Congress has ever authorized the president to issue a curfew or a shelter-in-place order,” said Michael Klarman, a constitutional law expert at Harvard Law School.”

People need to know, as pointed out in The Hill, just because an official issues an order it does not mean its lawful.  People should also realize that just because a law is passed at the state level it may well have components in that law that are unconstitutional.

For example, one of the powers the Governor has under the law is “(9) To suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.”

This is a perfect example of a law getting passed with clearly unconstitutional provisions.  Had such a provision been invoked we are confident gun rights lawyers would be standing in line to file federal lawsuits against the state.

Considering the US Constitution as well as the Illinois Constitution protects people’s right to own a firearm, we are quite confident no legislative body has the power to strip people of their right to buy a firearm, let alone transport one.

We believe the Governor’s attorneys have recognized how absurd that granted power relating to firearms is in light of the language in the most recent Executive Order, and thank the Governor for not trampling peoples’ 2nd amendment rights. Gun stores can remain open and people can transact business with them during the declared State of Emergency.

From the EO:

“(10……Nothing in this Executive Order shall prohibit any individual from performing or accessing Essential Governmental Functions.)

“(12)  Essential Businesses and Operations. For the purposes of this Executive Order, Essential Businesses and Operations means Healthcare and Public Health Operations,
Human Services Operations, Essential Govennnental Functions, and Essential Infrastructure, and the following

(n) “Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the supplies or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;”

The most recent EO has invoked specific paragraphs of Sections 7: 7(1), 7(2), 7(8), 7(10), and 7(12).

None of those provisions provide the power to order a “Shelter in Place” order in our opinion, however, they do provide for the Governor to deal with the movement of persons within the disaster area as well as the occupancy of premises therein. If your movement is controlled, where do you suggest staying?

Paragraph (8) – To control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.

So when people ask us, can the Governor order us to Shelter in Place, we have to simply turn to the law and see if such power was given. We have not found any such power. We have however found the power to control the movement of people within an area.  We are seeing, as reported in The Hill article, lawsuits getting filed in other states for Governor’s invoking certain claimed powers, which may be very valid legal cases, however, I believe we must also recognize the need to be smart vs. being right during an emergency.

We are protected by our Constitutional right to due process and there is a balancing act taking place right now.  As a Fire Chief, I have no problem calling in every possible mutual aid department to help us before leaving the bay, as I can always send them home if we find they were not needed. The law supports that power.  I encourage our firefighters to take a breath and count to 10 during those emergencies and I assure them we will get through the challenge before us and we are probably going to make a few mistakes.  We must learn from those mistakes and ensure the next time we don’t make the same ones. The most important thing during those emergencies, is our safety.  If we get hurt we can’t help those who need it.

I think the same needs to be applied in the current declared emergency by the Governor.  Clearly, the Governor has made some mistakes and invoked certain powers he does not have.  I have no doubt some lawsuits will be brought, laws will get changed to fix clear problems, but on the grand scale of things, we encourage everyone to realize, people are dying and the China virus “COVID-19” is among us.

The balancing act of Life and Liberty is playing out and one day we will look back on this event and hopefully learn from the mistakes and ensure they never happen again, and those harmed by illegal acts will be made whole through our due process rights that apply, emergency or not.

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