There is mounting litigation against state lockdown orders, in some cases based on constitutional violations, in other situations based on claims the state officials lacked or exceeded statutory or regulatory authority.

In a religious liberty case in Mississippi, the U.S. Department of Justice filed a Statement of Interest in support of a lawsuit challenging restrictions on drive-in religious services that were not applied to secular gatherings at liquor stores and fast food restaurants. The case settled with the City of Greenville treating religious gathering the same as other gatherings. A similar case in Kentucky ended up with an injunction granted the church.

DOJ also filed a Statement of Interest supporting a Virginia church.

Now DOJ has filed a Statement of Interest in an Illinois case challenging more general restrictions imposed by Governor J.B. Pritzker. The DOJ position is that the Governor’s last minute removal of the case from state to federal court, on the eve of a decision in state court, was improper. You can read the state court pleadings and motion papers here.

From the DOJ press release:

In response to the COVID-19 pandemic, the Governor of Illinois has, over the past two months, sought to rely on authority under the Illinois Emergency Management Agency Act to impose sweeping limitations on nearly all aspects of life for citizens of Illinois, significantly impairing in some instances their ability to maintain their economic livelihoods.  According to the lawsuit, the Governor’s actions are not authorized by state law, as they extend beyond the 30-day time period imposed by the Illinois legislature for the Governor’s exercise of emergency powers granted under the Act.

Representative Bailey brought his case in Illinois state court and elected only to assert state law claims.  On May 15, the presiding state court judge ordered Bailey to file his motion for summary judgment by May 18 and instructed the Governor to respond to it by May 21.  A hearing on the motion for summary judgment was scheduled to take place in state court today. Yesterday, however, instead of responding to Bailey’s motion for summary judgment, the Governor removed the case to federal district court….

“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.  “Even during times of crisis, executive actions undertaken in the name of public safety must be lawful.  And while the people of Illinois must be physically protected from the effects of this public health crisis, including by complying with CDC guidelines their constitutionally guaranteed rights and liberties must be safeguarded as well.”

In its statement of interest, the United States explains that this dispute belongs in Illinois state court, and that Representative Bailey has raised substantial questions as to whether the Governor’s current response to COVID-19 is lawful.  Although the complaint does not raise any federal constitutional claims, the statement explains, “It is up to the Illinois courts to rule on Plaintiff’s claims, which, because of the sweeping nature of the Orders, may affect millions of lives and raise significant constitutional concerns in other litigation.”

DOJ’s involvement is helpful, but the more important aspect of the case is how the Governor feared a negative state court decision so he pulled the case, likely improperly, up to federal court at the last minute.

An Emergency Motion to Remand the case back to state court has been filed. But it will be at least until next week, maybe longer, before there is a decision. Even if the case gets sent back down to state court, Pritzker bought himself some more time to lockdown the state — possibly illegally — through this procedural maneuvering.


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