Attorney General Candidate Kwame Raoul

Governor Pritzker’s nightmare – Executive Order power trumped by Illinois Supreme Court case law and Lisa Madigan written opinion

Illinois (ECWd) –

Illinois Governor JB Pritzker has been issuing executive orders for the last two months, and as people began to understand their rights and push back he took to threats and intimidation in hopes people would comply with his inappropriate and apparent illegal executive orders.

We first exposed a 2001 Attorney General opinion regarding the limitation of 30 days for Executive orders in this article.  The Governor denied knowledge of the legal opinion from the very office representing him. Many of the Governor’s defenders quickly dismissed the opinion because of it being an informal opinion written during a Republican administration. We find those excuses laughable because the legal analysis is what is important.

Pritzker’s nightmare exposed – Lisa Madigan legal opinoin

Lisa Madigan issued her opinion on the applicability of executive orders to the Illinois State Police Merit Board in 2013.  This appears to be yet another legal opinion either overlooked or ignored by Pritzker and his legal team.  The value in this opinion lies not only from the fact it is signed by Lisa Madigan, but it is backed by an Illinois Supreme Court case.

Applicability of Executive Orders“The Constitution provides that “[t]he Governor, by Executive Order, may reassign functions among or reorganize executive agencies which are directly responsible to him.” Ill. Const. 1970, art. V, § 11. This is the only reference to executive orders in the Constitution and, as a result, the only circumstance in which an executive order clearly carries the force and effect of law.”

“In general, article V, section 8, of the Illinois Constitution provides that “[t]he Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.” Citing this authority, the Illinois courts have suggested that an executive order may be a permissible method by which the Governor can execute an existing law, but that an executive order is not a vehicle for establishing a new legal requirement. Buettell v. Walker 59 Ill. 2d 146, 153-54 (1974). .  Accordingly, the Governor does not have power to legislate by executive order, and, therefore, unless authorized by law, an executive order relating to matters other than executive reorganization can be no more than a policy directive to agencies under the Governor’s control. To conclude otherwise would cede to the Governor legislative powers which he is prohibited from exercising by the separation of powers doctrine. See Ill. Const. 1970, art. II, § 1; see generally Ill. Const. 1970, art. IV, § 1.”

Additional language in the opinion also points to the most basic legal analysis on statutory construction, a point we have written about dozens if not hundreds of times. Applying Madigan’s analysis to the language in the Emergency Management Agency Act and the 30-day limitation to an emergency declaration, Pritzker is put in check by a member of his own party and from the very office empowered to legally represent him.

“The primary purpose of statutory construction is to ascertain and give effect to the intent of the General Assembly. Board of Education of Auburn Community Unit School District No. 10 v. Department of Revenue, 242 Ill. 2d 272, 279 (2011 ). Legislative intent is best evidenced by the language used in the statute. People v. Marshall, 242 Ill. 2d 285, 292 (2011). Where statutory language is clear and unambiguous, it must be given effect as written. First American Bank Corp. v. Henry, 239 Ill. 2d 511, 516 (2011 ).”

It is clear, Attorney General Lisa Madigan not only wrote an opinion that clearly puts Pritzker in check, but she also cited the Illinois Supreme Court as the authority in the Buettell V Walker case.

Pritzker’s nightmare continues with the fact the Illinois Supreme Court clearly outlines that Executive Orders only apply to those in State Government. 

“The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.” The purpose of the order appears to be to formulate a new legal requirement rather than to execute an existing one. And while the order properly emphasizes the desirability of regulating the conduct of those who seek to do business with the State, the desirability of a regulation must be distinguished from the power to promulgate it.”

“..as a proper exercise of the power that section 2 of article XIII of the Constitution grants to the Governor as head of the executive branch, “to establish and enforce ethical standards for that branch.” The power granted by that provision does not, in our opinion, include the power to establish and enforce ethical standards for persons doing business with the executive branch. The present order does not regulate the conduct of officers and employees of the executive branch. Instead, its impact, including its sanctions, is upon third persons who are not a part of State government. It does not, therefore, fall within the authority granted by section 2 of article XIII.”

The Illinois Supreme Court relied on the plain language of the Constitution.

“Article V – SECTION 11. GOVERNOR – AGENCY REORGANIZATION The Governor, by Executive Order, may reassign functions among or reorganize executive agencies which are directly responsible to him. If such a reassignment or reorganization would contravene a statute, the Executive Order shall be delivered to the General Assembly. If the General Assembly is in annual session and if the Executive Order is delivered on or before April 1, the General Assembly shall consider the Executive Order at that annual session. If the General Assembly is not in annual session or if the Executive Order is delivered after April 1, the General Assembly shall consider the Executive Order at its next annual session, in which case the Executive Order shall be deemed to have been delivered on the first day of that annual session. Such an Executive Order shall not become effective if, within 60 calendar days after its delivery to the General Assembly, either house disapproves the Executive Order by the record vote of a majority of the members elected. An Executive Order not so disapproved shall become effective by its terms but not less than 60 calendar days after its delivery to the General Assembly.(Source: Illinois Constitution.)”

Nowhere in the Constitution does it provide the Governor with Executive Order power beyond “reassign functions among or reorganize executive agencies which are directly responsible to him.

Considering the Governor is attempting to do an end-run around the legislature with new rules being adopted through an emergency rules provision (article here), it appears their legal team may be realizing they can’t use Executive Orders in the fashion they have been doing for the last 9 weeks. As the court stated,   “The present order does not regulate the conduct of officers and employees of the executive branch. Instead, its impact, including its sanctions, is upon third persons who are not a part of State government. It does not, therefore, fall within the authority granted by section 2 of article XIII.”

With the Executive Order power being put in check, it appears the “emergency” rule path will hit its roadblock with Restraining Orders to be filed shortly.

The opinion and case law can be downloaded here and here, or viewed below.

Madigan 2013 Opinion on Executive Orders

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Buettell v Walker

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29 replies »

  1. From the Illinois Review on Wirepoints today. The ruling from Lisa Madigan (above) and this Pandemic law sponsored by then senator Obama says to me blatant abuse by Pritzker….deliberately. Open Illinois!

    Here’s the article from Illinois Review.MONDAY, MAY 18, 2020

    OPINION: WHY DOES PRITZKER IGNORE PANDEMIC LAW FORMER STATE SENATOR BARACK OBAMA SPONSORED?
    Download-3Opinion by former State Senator Ed Petka (R-Plainfield) –

    Did you know that Illinois Law requires that a private place or business could only be closed or shut down by the consent of the owner or by a court order?

    Did you know that there had to be written notice within 48 hours of the shutdown order of their right to a hearing in a court ?

    Did you know that you had a right to a free attorney if you were unable to afford one at this hearing?

    Did you know that the government had to obtain a court order that specifically stated how long the shutdown would last?

    Did you know that the state of Illinois could only obtain this court order by proving with clear and convincing evidence that the health of the public is significantly endangered if those places and businesses remain open and that all other reasonable means to correct the problem have been exhausted and that no less restrictive alternative exists?

    Did you know that Illinois law says that if proper notice was not given as required and no court order was obtained , the Governor’s executive order to shutdown cannot be enforced by the State but is merely his opinion and recommendation?

    If you were unaware of all these rights that you had to protect yourself from government action, the question is why?

    The answer is simple, the current Governor and his administration concealed this information – even though Illinois state law required them to notify those subject to the lockdown to receive written notice.

    Did I mention that the author and chief legislative sponsor of this Act- the Public Health Emergencies Act (20 ILCS 2305/ ) was Senator Barack Obama? – So I ask- why does our Governor choose to ignore Senator Barack Obama’s law that was passed to specifically deal with pandemics?

    Former state Senator Ed Petka represented much of Will County while serving in the Illinois Senate from 1993 to 2007.

    Monday, May 18, 2020 at 11:55 AM | Permalink

  2. Excellent job, Dogs! Are we to assume that the ruling went against JB? I don’t see it posted on the Re-Open Illinois site. People are still asking us to contact the committee members and so just wondering if they are still in session?

  3. The Illinois State Police Merit Board is exempt from GOMB due to 15 ILCS 15/3.1, the Executive Reorganization Implementation Act. The portion that wasn’t highlighted.

  4. FYI, I just got my account suspended on the Nextdoor site because I posted the Edgar County Watchdogs info about the 150-day proposed Amended Rule. What a bunch of Nazis on that site. Somebody said I was using a fake name!

      • It’s like a hyper-local facebook thing, basically for people in your town to use. The site was created in San Francisco. Need I say more! Anyways, if the Lefty people in your neighborhood don’t like what you post, they will report you to the brown-shirt administrator of the site. In my case, somebody claimed I was using a fake name! Geezus if it was fake, how did I get passed the account creation? The site is supposed to check for fake names but it actually doesn’t because in the past I myself reported somebody that was using the name Kindly Kow. But the point is that apparently its a bunch of nazis in my neighborhood. Yesterday I had posted the Edgar County Watchdog link about the 150-days proposed amended rule and people went bonkers saying it was fake news, etc. Then one of them got my post/thread removed from one of the Topics I had posted it in. I had it posted in a second Topic so for some reason that wasn’t removed. So this morning I posted more info about the story and mentioned that even as of this morning the local Fox 32 TV reported about the 150 days thing. Well that must have been the final straw for someone because they reported me saying I was using a fake name and thus deactivated my account. I’m here in St. Charles, a far west suburb of Chicago.

  5. Under law, the Governor is not permitted to transfer, move or otherwise disturb funds appropriated by the General Assembly. Fund-sweeps are illegal. However, elected officials in Illinois have never felt that they are held to any legal standard. So, appropriated funds for the issuance of FOID cards and CCP have been swept with no legal basis. Appropriated funds to the five Illinois Pension Funds have been swept in the past, or simply not funded. The end result is the same. Oh, and for the record, Illinois elected officials have done just as they wish for decades. And now, JBP has entered the scene assuming he has ultimate authority to shutdown and inflict more economic pain on citizens and businesses for an additional 150 days based on yet another moronic order that has no binding legal effect. Tyrannical orders should be recognized as baseless and not grounded in law. A tyrannical Governor should be recalled or impeached.

    • A recall will only force another election. IL voters are stupid. Recall shouldn’t even be considered…Impeachment is the only logical solution to this crazy taxation idiot named JB.

  6. Absolutely love this article. It’s unfortunate people don’t look at the real science and regurgitate what they’re told. But fear can control those who are too lazy or too weak to understand.

  7. The first paragraph of Madigan’s opinion begs the following question:

    Can the governor or GOMB, lawfully, in any way transfer, divert or disturb funds the General Assembly has directly appropriated for use in the administration of the FOID statutes?

    As the governor has done so in the past few years, or at least as reported in the press.

    Resulting in a breakdown of the ISP FOID unit and unacceptable (and dangerous, for the FOID card holder) renewal wait times for FOID cards to be mailed to law-abiding gun owners.

  8. Actually, I don’t care – I’m limiting going out and if a business “opens” only going if they provide safe distances, if restaurant mask for employees, table safe distance apart, limit number of people. I’m not stupid enough to believe this is the “common” type A or whatever letter flu — this is a virus to be respected for how it may affect a population & has affected many – not fear, but take the necessary precautions.

    • You don’t care if your Government is trashing constitutional (both US and Illinois) rights?

      Okay then.

      You stay home and be safe. Cower and fear and do it all over again (with a mask!) next influenza season.

      No one minds if you stay home, you know.

      Actually, we’d probably prefer it. 😉

    • That is within your rights. Just don’t expect everyone else to even remotely share that viewpoint and don’t make the mistake of trying to force others to do so.

    • Over 99% of the people that have had the Chinese Virus survived. You have a better chance at dying in a medical facility due to medical errors then the Chinese Virus. 250,000 die a year from medical errors. Should we close those facilities down? If you want you could place your mask on and hide under your bed for the next 2 years. We’ll knock on your door when it’s all clear.

        • Maybe he is a healthy individual. Maybe he takes vitamins and supplements that boosts his immune system.

        • Really? So many people around him tested positive? What source can you cite? If that were true, your Communist News Network would have started covering the White House briefings again.

          Maybe you should take your own advice and find a safe corner somewhere in your basement, put on a bubble suit, pipe in a feeding tube and wait for every virus and bacteria to be eradicated before venturing out again.

          Disclosure, from where do get your paycheck? Must be a government leach, because working folks need to get back to work and back to supporting each other through normal business transactions.

    • Absolutely, do what you want to do. You’re probably not a small business owner who is on the verge of losing everything they’ve worked for all their life. These businesses are essential; to their family’s well being and to the communities they serve. This governor does not have the authority to put this state on lockdown for more than 30 and even then, the law states that his authority is to state employees and officials only, not to the citizens directly.

  9. I especially like this part…..”With the Executive Order power being put in check, it appears the “emergency” rule path will hit its roadblock with Restraining Orders to be filed shortly.”

    Good work, guys.

  10. Excellent Dogs! I too deny that the governor & IDPH are above the Illinois constitution. The Illinois constitution grants neither the governor or the IDPH the power to suspend the Bill of Rights in the Illinois constitution. The Bill of Rights in the Illinois constitution protects our rights from state govt. The Illinois constitution does NOT grant the governor or IDPH emergency powers to deny us our constitutionally protected rights. The governor has no authority aside from what is granted by the Illinois state constitution. And the state legislature has no lawful authority to grant the governor or IDPH additional power. Our emperor governor cannot make our rights illegal. What is the Governor’s “executive Power”?
    The granting of the “executive Power” to the Governor is not a blank check giving him power to do whatever he wants. Article V, section 8 of the Illinois state constitution states in part, the governor shall be responsible for the faithful execution of the laws. By way of an “executive order” the governor has the duty to implement those lawful acts of Illinois State Legislature. The governor has no authority aside from what is granted by the Illinois state constitution. The state legislature cannot unilaterally and lawfully grant the governor an emergency power by way of a state statute; to do so violates the Illinois constitution. The Illinois state constitution may be amended to give the governor an emergency power. But, the PEOPLE and the state legislature must vote to approve such an amendment to the Illinois constitution. Think about it, if the state legislature can grant additional powers to the governor willy nilly, then what is the point of the Illinois constitution. If a state legislature can grant power not constitutionally granted to the governor, then what would stop a state legislature from making a governor, a monarch. So, you see there is a sound reason why the voters must vote on a constitutional amendment to the Illinois constitution, it’s to ensure we retain our govt of the people, by the people and for the people. Absolute power must not be allowed. The governor’s “executive orders”, may not lawfully exercise powers which are not granted to him by the Illinois Constitution or by constitutionally lawful acts of the state legislature.
    I hope you see; the governor may lawfully make executive orders to carry out his constitutionally granted powers and duties, and powers conferred by statutes which are constitutional. The governor may address “housekeeping” issues within the executive branch with executive orders. Housekeeping executive orders, for example may include no smoking in the office or dress code policies, and he may encourage executive offices to hire qualified veterans.
    His order are just hot air, legally speaking they have no teeth, I don’t care if he has declared an emergency. The governor cannot void the Illinois constitution by declaring a so-called emergency!

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