Updated Tuesday, May 12th -
CHICAGO – In 2004, when state senator in Illinois, former President Barack Obama sponsored legislation that led to the "Illinois Emergency Management Act" – the same Illinois Department of Public Health policy guideline from which Governor JB Pritzker claims to have derived authority to issue his COVID-19 Executive Order 2020-10.
Obama's 2004 legislation passed the Illinois Senate and House unanimously – but the key points of his bill placed epidemic guidance into the hands of the Illinois Department of Public Health, not the governor's office.
In a piece entitled "Barack Obama’s Sponsored Law Makes Governor Pritzker’s Stay-at-Home Orders Advisory," the Ivec Law Firm of Plainfield, Illinois suggests Pritzker's Executive Orders threaten Constitutional rights.
"To put into our context, Governor Pritzker has issued executive orders which impair a number of fundamental rights," Ivec's legal assessment says.
The Illinois Emergency Management Act – in Illinois statutes as 20 ILCS 3305/18 – states that emergency services and disaster agencies established under the act shall execute and enforce the orders, rules and regulations as may be made by the Governor. However, it does not say the citizens or businesses of our State are under the same obligation. [Ed.notation added]
"In short, the Governor cannot exercise more authority than that given to the Illinois Department of Public Health, who is the supreme authority in matters of quarantine and isolation," Ivec Law Firm says. "This power is limited by our Constitution and by both Statute and Regulations."
Portions of Ivec's Assessment of Pritzker's Executive Orders and application of the Obama-sponsored Act is found below. To read their full analysis on their website:
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Legal Analysis
This article is a legal analysis of the enforceability of the Illinois Emergency Executive orders. These orders, on their face, touch upon fundamental liberties such as the freedom to assemble, freedom to worship, freedom to travel, rights to work, decisions which affect an individual’s health. Our State Constitution acknowledges that “all men are by nature free and independent and have certain inherent and inalienable rights.” That these rights do not come from the government, but that government derives their power from the consent of the governed. (Art. I, Sect.1 Illinois Constitution).
Your Rights
In protecting these rights, it is necessary that every person, have due process or their day court, “No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” (Art. I, Sect. 2). Certain rights are considered fundamental and are expressly enumerated: Religious Freedom, Right to Assemble and Petition, Right to Remedy and Justice, the Fundamental Principles of Liberty and Individual Responsibilities. (Art. I, Sects. 3, 5, 12, 23). These enumeration of rights do not diminish the individual rights retained by our citizens. (Art. I, Sect. 24.)
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Barack Obama’s Role in Limiting the Power to Isolate or Quarantine
Understanding that these powers may touch upon fundamental liberties, in 2004, then Illinois State Senator, Barack Obama, was the chief Senate sponsor of an act to explicitly incorporate into the statute, requirements to protect our citizen’s rights. The IDPH’s power was limited. No person or group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off-limits to the public except with the consent of the person or owner or upon prior order of court. In the case of an emergency, the IDPH may issue an order, but then IDPH shall, as soon as practical, within 48 hours after, either obtain consent or file a petition requesting a court order.
To obtain a court order, the department must prove by clear and convincing evidence that the public’s health and welfare are significantly endangered, that all other reasonable means have been exhausted and no less restrictive alternative exists.
Persons and businesses subject to this order are entitled to written notice of the order which shall include notice of: (1) the right to counsel, (2) court appointed counsel if indigent, (3) reason for the order, (4) whether order is immediate or time frame for the department to seek consent or file a petition for court order, and (5) notice of anticipated duration.
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Conclusions
In short, the Governor cannot exercise more authority than that given to the IDPH who is the supreme authority in matters of quarantine and isolation. This power is limited by our Constitution and by both Statute and Regulations. Due process requires notice and an opportunity to be quickly heard before an impartial court. The regulations clearly state that without personal service of an order, it is merely advisory and cannot be enforced by law enforcement. That Statute provides that once notice is given, the department bears the burden of bringing the individual or business owner before a judge within 48 hours.
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Contact the Ivec Law Firm
If you are a small business owner looking for legal representation to help you reopen, I can help. Contact JohnPaul Ivec and the Ivec Law Firm, P.C. today at (815) 439-9909 for a free consultation, or by email using this form on the firm’s website.
