The Department of Justice intervened last Friday in support of a challenge to Illinois’ stay-at-home coronavirus order, calling for the case to be transferred back to state court.
The U.S. attorney general’s office filed a statement of interest in the case of downstate Republican state Rep. Darren Bailey, writing, “Plaintiff has set forth a strong case that the Orders exceed the authority granted to the Governor by the Illinois legislature.”
Bailey had won an initial ruling last month to be freed from Gov. J.B. Pritzker’s executive order shutting down most businesses and churches and requiring people to stay home except under limited circumstances. When Bailey asked to broaden that ruling to invalidate the order for all citizens statewide, the Illinois attorney general Thursday transferred the case to federal court, citing constitutional issues such as freedom of religion and due process.
The state was expected to have a better shot of protecting its lockdown order in federal court, where judges have ruled in several cases in favor of maintaining such orders in Illinois and elsewhere.
The case should be sent back to state court, the feds argued, because it raises claims only under state law, not the U.S. Constitution.
The Department of Justice issued a statement that the intervention was part of Attorney General William Barr’s initiative “to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic.”
There is a legitimate interest in protecting public health from the virus that causes COVID-19, the federal attorneys conceded, adding, “But that interest does not justify government restrictions imposed upon its citizens without legal authority.”
“However well-intentioned 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,” said Steven D. Weinhoeft, the U.S. attorney for the Southern District of Illinois.
The Illinois attorney general’s office would not comment on the federal involvement, but has argued in court that previous governors have often issued repeated 30-day emergency orders, a practice that has been upheld by the courts without any changes by lawmakers.
Pritzker has warned repeatedly that unless everyone follows the shutdown orders, more people will get sick and die.
Also Friday, Clay County Judge Michael McHaney, who previously ruled in Bailey’s favor, ruled that the governor’s order is not enforceable against Iraq War veteran James Mainer and his business, HCL Deluxe Tan LLC in Clay City.
But McHaney refused to rule the order invalid for all state residents while that case continues. He also noted that the Illinois Department of Public Health still has the power to shut down businesses should circumstances warrant.
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