Legislatures in Three States Want Courts To Quash Virus Orders

Republican legislators in the Midwest are going to court to try to countermand extended stay-at-home orders, claiming Democratic administrations have exceeded their constitutional authority during the coronavirus pandemic.

The Republican-controlled Michigan House and Senate on Thursday approved resolutions authorizing a lawsuit against Gov. Gretchen Whitmer (D) if she were to extend her state’s emergency declaration, which underpins more than two dozen executive orders.

Whitmer nonetheless issued a new emergency declaration Thursday night.

“Defeating COVID-19 is an all hands on deck moment for our state, and I remain hopeful that Republicans in the legislature will stop the partisan games and start working with me to re-engage our economy safely and responsibly,” Whitmer said in a statement.

GOP lawmakers already have filed lawsuits against Illinois Gov. J.B. Pritzker (D) and a cabinet secretary for Wisconsin Gov. Tony Evers (D).

Photographer: Anthony Lanzilote/Bloomberg

Gov. Gretchen Whitmer (D-Mich.) at a July 22, 2019 speech.

The state efforts reflect President Donald Trump’s push to reopen businesses across the nation. His “30 Days to Slow the Spread” strategy extended through the month of April and wasn’t renewed.

Whitmer has argued she doesn’t need legislative consent to exercise emergency powers. GOP leaders eager to reopen the state economy say state law demands that any emergency must be reauthorized by the General Assembly—not simply extended by Whitmer—and the governor must negotiate with legislators for a consensus response to the pandemic.

“Moving forward we believe that we need to partner with the governor and ensure that everything the people in our state need is done through a partnership,” Speaker Lee Chatfield (R) said Thursday following the House’s vote.

The Michigan House resolution was sponsored by state Rep. Shane Hernandez (R) and the Senate resolution was sponsored by state Sen. Jim Stamas (R).

Illinois Cases

In Illinois, state Rep. John Cabello (R) on Wednesday filed a complaint in Winnebago County Circuit Court claiming Pritzker exceeded his constitutional authority when he ordered Illinois residents to stay home. “What laws or regulations are necessary to protect public health and secure public comfort is a legislative question, not an executive one,” according to the complaint.

In a second Illinois case, Attorney General Kwame Raoul (D) appealed a court ruling Monday granting state Rep. Darren Bailey (R) temporary relief from the enforcement of Pritzker’s modified stay-at-home order in Clay County Circuit Court. Bailey argued in his April 23 complaint that because a March 9 disaster declaration expired April 8 Pritzker exceeded his authority when he modified and extended the March 20 stay-at-home order to April 30.

Judge Michael D. McHaney agreed, saying the extension was an infringement of the state representative’s rights. “Plaintiff has shown he has a clearly ascertainable right in need of immediate protection, namely his liberty interest to be free from Pritzker’s executive order of quarantine in his home,” the judge wrote.

See also: Illinois Judge Rules Against State’s Stay-at-Home Order

‘State Will be in Shambles’

And in Wisconsin, Attorney General Joshua Kaul (D) claimed Tuesday that a Republican-led challenge to an Evers “safer-at-home” order should be rejected. The order by Department of Health Services Secretary Designee Andrea Palm does not violate state laws and was reasonable because the public’s health is in peril, Kaul said in his Wisconsin Supreme Court filing on Tuesday.

Evers and Palm have “broad and well-established authority” to respond to health emergencies such as the Covid-19 pandemic by issuing orders that effectively shut down businesses and require state residents to shelter in place, Kaul said.

A Wisconsin State Legislature memorandum in support of its petition said that Palm exceeded her legal authority when she issued emergency rules, ordered nonessential businesses to shut down, ordered residents to shelter in place, and prohibited nonessential travel.

“Purporting to act under color of State law, an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin” the complaint said. If the order is not struck down by the court, state residents will lose their jobs and employers will continue to shut their enterprises.

“Our State will be shambles,” the memorandum said.

The Wisconsin case is Wisconsin Legislature v. Palm, Wis., No. 2020AP000765, petition for an original action and injunctive relief 4/21/20.

The Illinois case filed by Rep. Cabello is Cabello v. Pritzker, Ill. Cir. Ct., No. 2020-ch-0000210, 4/29/20.

The Illinois case filed by Rep. Bailey is Bailey v. Pritzker, Ill. Cir. Ct., No. 2020CH006, 4/23/20.

With assistance from Shruti Singh (Bloomberg News) in Chicago

To contact the reporters on this story: Stephen Joyce in Chicago at sjoyce@bloomberglaw.com; Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com