Another Illinois Attorney General legal opinion from 2001, has surfaced indicating the Illinois Attorney General’s office position has changed on the question of whether Gov. JB Pritzker has overstepped his authority in extending his emergency powers to govern by executive order beyond 30 days, without first securing approval of Illinois state lawmakers.

On May 13, the Edgar County Watchdogs, a downstate investigative blog, published a 2001 memorandum from a former senior staff member at the Illinois Attorney General’s Office.

In that memo, Michael J. Luke, identified as senior assistant attorney general and chief of the office’s Opinions Bureau, indicated it was the opinion of the Attorney General’s office that Illinois state law does not allow a governor to simply extend his use of emergency powers for as long as the governor believes is necessary.

The Illinois Emergency Management Act “clearly authorizes the Governor to exercise emergency powers for up to 30 days,” Luke wrote in the memo.

However, to allow an Illinois governor to simply continue to extend those emergency provisions, at whim, “would render the limitation clause meaningless,” Luke wrote.

“A more reasonable construction, taking into consideration the other provisions of the (IEMA law), is that the Governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.”

The memo was addressed to former Illinois Environmental Protection Agency Director Michael Chamness. At the time, it was to address the legal path forward, should the governor – Republican George Ryan, at the time – need to declare an emergency in response to an outbreak of hoof and mouth disease among livestock in the state.

Emergency Powers of the IL Governor (See also “Powers of the Governor”)

Section 7 of the IEMA Act (20 ILCS 3305/7(a) (West 2001 Supp.)) provides that in the event of a disaster, the Governor may, by proclamation, declare that a disaster exists.

Upon such proclamation, the Governor shall have and may exercise for a period of time not to exceed 30 days the emergency powers set out in that section. In informal Attorney General opinion No. I-01-028, issued July 2, 2001, it was determined that the emergency powers of the Governor cannot be extended beyond the 30 day period
permitted in subsection 7(a)(1) of the IEMA Act without legislative approval.

Republican Jim Ryan served as attorney general at that time. He was succeeded by Democrat Lisa Madigan. She was, in turn, succeeded by Democrat Kwame Raoul, who currently serves in the office.

The Illinois Emergency Management Act “clearly authorizes the Governor to exercise emergency powers for up to 30 days,” Luke wrote in the memo.
However, to allow an Illinois governor to simply continue to extend those emergency provisions, at whim, “would render the limitation clause meaningless.”

In recent court filings, however, Raoul has taken a completely opposite stance while defending Pritzker against legal challenges to his authority to continue to use emergency powers in response to the COVID-19 pandemic.