An Illinois family is struggling with their 12-year-old child who has cerebral palsy and requires around-the-clock care. Since Illinois announced its stay-at-home order, her parents have not been able to receive any help from visiting nurses as they normally do. Other families have lost their jobs and are wondering how they will pay their rent. As Illinois residents grow more restless regarding the stay-at-home order, which has been extended until at least the end of May, some are wondering whether the order is constitutional.
Illinois’ Appellate Prosecutor Recently Criticized Illinois’ Stay-at-Home Order
Illinois Governor J.B. Pritzker recently announced an extension of his stay-at-home order. Soon after the announcement, Chief Deputy Director of the Illinois Appellate Prosecutor’s Office, David J. Robinson, sent a memorandum to his office questioning the legality of the order. Mr. Robinson laid out numerous arguments as to why Governor Pritzker’s order is not legally valid.
Robinson begins by pointing out that the stay-at-home order does infringe on the constitutional rights of Illinois citizens, specifically:
- The right to religious freedom, including protection for a citizen’s “mode of worship”
- The right to assemble and petition or protest the government
- The right of eminent domain
- All other retained rights
He goes on to argue that in an emergency, the Constitution requires that individuals act responsibly, rather than a suspension of constitutional rights. Article V of the Constitution does not give the executive branch the authority to suspend constitutional rights. Additionally, Article XII of the Constitution allows the Governor to organize the militia only for the purpose of enforcing the laws, suppressing insurrection, or repelling an invasion.
The Government Faces Strict Scrutiny When it Infringes on Fundamental Rights
The governor did not cite any constitutional authority in his executive order, probably because he is aware that he is, at best, on shaky constitutional grounds. Case law does not support the constitutionality of the executive order. When governments infringe on fundamental constitutional rights, like the right to protest the government and attend religious services, they must have a compelling interest.
If challenged, Gov. Pritzker’s order will face strict scrutiny in court, especially regarding the right to assemble in churches and to protest. The order specifically states that people cannot gather in groups over 10 and that all travel is prohibited. He did not include attending religious services or assembling to protest the government as an essential activity.
Is the Stay-at-Home Order Constitutional?
The argument laid out by Robinson is compelling. While the governor cites sections of Illinois’ Emergency Management Act for authority, the Act does not trump the Constitution. On a separate note, the stay-at-home order appears to not be in compliance with the Emergency Management Act. Groups have already begun challenging the stay-at-home order.
Robinson himself states that he is unsure whether or not a court would enforce the order. He ends his memo stating that law enforcement should understand that they need to enforce the stay-at-home order with the Illinois Constitution and the Constitution of the United States in mind. If you are facing criminal charges related to the stay-at-home order, you need an experienced criminal defense lawyer. Contact Glasgow & Olsson today to schedule your initial consultation.