As Pritzker continues to extend his emergency powers, what role should the General Assembly play?

The governor is poised to continually issue disaster proclamations to extend his emergency powers during the COVID-19 pandemic, but the General Assembly has a role to play in the crisis, too.

Emergency powers granted to a governor last 30 days after a disaster is declared under Illinois law. Gov. J.B. Pritzker extended this period a second 30 days by making a separate disaster proclamation, and he has indicated that he will extend these powers again.

But at some point after 30, 60, or even 90 days, an emergency becomes a long-term problem, and the Illinois General Assembly should be involved in its management.

Disaster proclamations under Illinois law

Pritzker issued a disaster proclamation March 9, triggering 30 days of emergency powers granted to him by the Illinois Emergency Management Agency Act, or IEMAA. That would have expired April 7, but Pritzker issued a second disaster proclamation April 1 extending his emergency powers until April 30.

The response to the COVID-19 pandemic is not the first time Pritzker has made two proclamations during the same disaster. In response to severe flooding in part of the state, Pritzker issued a disaster proclamation covering 34 counties on May 3, 2019. On May 31, 2019, he issued a second proclamation for those 34 counties.

There is nothing in the IEMAA limiting the number of disasters a governor can proclaim, but there is no provision explicitly allowing him to renew a proclamation to extend emergency powers, either. In other words, the statute does not explicitly state the governor can issue a second proclamation for the same disaster, and the General Assembly has not returned to session to pass legislation to clarify this.

No one knows how many additional proclamations the governor will issue to extend his emergency powers, but at a daily briefing April 23 he said he planned to extend Illinois’ stay-at-home order through the end of May. This was in keeping with the governor’s previous comments that he assumed the threat from the COVID-19 virus would continue for the foreseeable future:

“From my perspective today, I do not see how we are going to have large gatherings of people again until we have a vaccine, which is months and months away,” Pritzker said. “I would not risk having large groups of people getting together anywhere. I think that’s hard for everybody to hear, but that’s just a fact.”

By most estimates, a vaccine is 12-18 months away at the earliest. The governor has sounded optimistic that Illinois may soon be seeing a leveling-off of cases, and has announced a loosening of the stay-at-home order to start opening some “nonessential” businesses for pickup and delivery services, to allow some elective surgeries and nonemergency medical procedures to take place, and to allow some golf courses and state parks to reopen.

But the governor does not need to make disaster proclamations month after month to deal with the COVID-19 crisis in the long term.

Now that the emergency of the initial outbreak has become a long and concerted effort to flatten the infection curve, the General Assembly has time to pass legislation to authorize or impose measures they think are necessary to protect public health and safety during this outbreak. And local governments can tailor responses to the needs of their communities.

Executive and legislative responsibilities in crises

Part of the reason the governor has emergency powers during a crisis is because the General Assembly is a deliberative body that cannot react quickly to an immediate crisis. But the governor has a 30-day limit on his emergency powers for a reason, too. Executive emergency powers are essential, but the responsibility to manage a long-term crisis is also shared with the legislature.

Historically, most states have not allowed emergency powers to last indefinitely. Emergency executive powers are meant to allow the governor to quickly address a disaster in a way that a deliberative body such as the General Assembly simply cannot. But as the sudden emergency becomes a longer-term problem, the legislature should deliberate to come up with a response with input from a variety of viewpoints for long-term and collaborative solutions.

The governor was not meant to rule by executive order and emergency powers forever. Despite the governor’s emergency powers, the General Assembly has authority only it can exercise. In general, only the General Assembly can appropriate additional state funds for the response. And only the legislature can repeal Illinois’ certificate of need law, which limits the expansion or construction of health care facilities and equipment purchases, or permanently loosen regulations that act as barriers to additional health care workers. Legislators could even expand the governor’s emergency powers in response to the crisis if they thought it necessary.

But to do any of that, they need to pass legislation.

It is true that the General Assembly faces barriers to convening in this crisis. Article IV, Section 5(c) of the state constitution requires that legislative sessions be open to the public. The exception is an allowance for closed sessions if two-thirds of the members of the house in session determine that closed meetings are required by the public interest. The General Assembly is also required by state law to hold session at the seat of government, but the governor can convene the General Assembly “at some other place” in case of pestilence or public danger. It is unclear whether that would allow the General Assembly to hold sessions remotely, but that can be clarified through legislation, and the legislature should come up with a plan for how and when to meet safely. Once it does, the General Assembly should announce its plans to get back to the business of governing. Whatever the necessary restrictions, legislators need to determine procedures for voting while making deliberations as publicly available as possible.

Rapid executive response is necessary when there is an imminent threat to public health or safety. But the General Assembly should be involved in the long-term management of the COVID-19 crisis. There are structural barriers to dealing with Illinoisans’ health care needs and economic hardships that require permanent solutions, and only the General Assembly has the ability to enact a lasting response to this crisis.