Lisa Madigan issued her opinion on the applicability of executive orders to the Illinois State Police Merit Board in 2013. This appears to be yet another legal opinion either overlooked or ignored by Pritzker and his legal team. The value in this opinion lies not only from the fact it is signed by Lisa Madigan, but it is backed by an Illinois Supreme Court case.
Applicability of Executive Orders – “The Constitution provides that “[t]he Governor, by Executive Order, may reassign functions among or reorganize executive agencies which are directly responsible to him.” Ill. Const. 1970, art. V, § 11. This is the only reference to executive orders in the Constitution and, as a result, the only circumstance in which an executive order clearly carries the force and effect of law.”
“In general, article V, section 8, of the Illinois Constitution provides that “[t]he Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.” Citing this authority, the Illinois courts have suggested that an executive order may be a permissible method by which the Governor can execute an existing law, but that an executive order is not a vehicle for establishing a new legal requirement. Buettell v. Walker 59 Ill. 2d 146, 153-54 (1974). . Accordingly, the Governor does not have power to legislate by executive order, and, therefore, unless authorized by law, an executive order relating to matters other than executive reorganization can be no more than a policy directive to agencies under the Governor’s control. To conclude otherwise would cede to the Governor legislative powers which he is prohibited from exercising by the separation of powers doctrine. See Ill. Const. 1970, art. II, § 1; see generally Ill. Const. 1970, art. IV, § 1.”
Additional language in the opinion also points to the most basic legal analysis on statutory construction, a point we have written about dozens if not hundreds of times. Applying Madigan’s analysis to the language in the Emergency Management Agency Act and the 30-day limitation to an emergency declaration, Pritzker is put in check by a member of his own party and from the very office empowered to legally represent him.
“The primary purpose of statutory construction is to ascertain and give effect to the intent of the General Assembly. Board of Education of Auburn Community Unit School District No. 10 v. Department of Revenue, 242 Ill. 2d 272, 279 (2011 ). Legislative intent is best evidenced by the language used in the statute. People v. Marshall, 242 Ill. 2d 285, 292 (2011). Where statutory language is clear and unambiguous, it must be given effect as written. First American Bank Corp. v. Henry, 239 Ill. 2d 511, 516 (2011 ).”
It is clear, Attorney General Lisa Madigan not only wrote an opinion that clearly puts Pritzker in check, but she also cited the Illinois Supreme Court as the authority in the Buettell V Walker case.
Pritzker’s nightmare continues with the fact the Illinois Supreme Court clearly outlines that Executive Orders only apply to those in State Government.
“The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.” The purpose of the order appears to be to formulate a new legal requirement rather than to execute an existing one. And while the order properly emphasizes the desirability of regulating the conduct of those who seek to do business with the State, the desirability of a regulation must be distinguished from the power to promulgate it.”
“..as a proper exercise of the power that section 2 of article XIII of the Constitution grants to the Governor as head of the executive branch, “to establish and enforce ethical standards for that branch.” The power granted by that provision does not, in our opinion, include the power to establish and enforce ethical standards for persons doing business with the executive branch. The present order does not regulate the conduct of officers and employees of the executive branch. Instead, its impact, including its sanctions, is upon third persons who are not a part of State government. It does not, therefore, fall within the authority granted by section 2 of article XIII.”
The Illinois Supreme Court relied on the plain language of the Constitution.
“Article V – SECTION 11. GOVERNOR – AGENCY REORGANIZATION The Governor, by Executive Order, may reassign functions among or reorganize executive agencies which are directly responsible to him. If such a reassignment or reorganization would contravene a statute, the Executive Order shall be delivered to the General Assembly. If the General Assembly is in annual session and if the Executive Order is delivered on or before April 1, the General Assembly shall consider the Executive Order at that annual session. If the General Assembly is not in annual session or if the Executive Order is delivered after April 1, the General Assembly shall consider the Executive Order at its next annual session, in which case the Executive Order shall be deemed to have been delivered on the first day of that annual session. Such an Executive Order shall not become effective if, within 60 calendar days after its delivery to the General Assembly, either house disapproves the Executive Order by the record vote of a majority of the members elected. An Executive Order not so disapproved shall become effective by its terms but not less than 60 calendar days after its delivery to the General Assembly.(Source: Illinois Constitution.)”
Nowhere in the Constitution does it provide the Governor with Executive Order power beyond “reassign functions among or reorganize executive agencies which are directly responsible to him.”
Considering the Governor is attempting to do an end-run around the legislature with new rules being adopted through an emergency rules provision (article here), it appears their legal team may be realizing they can’t use Executive Orders in the fashion they have been doing for the last 9 weeks. As the court stated, “The present order does not regulate the conduct of officers and employees of the executive branch. Instead, its impact, including its sanctions, is upon third persons who are not a part of State government. It does not, therefore, fall within the authority granted by section 2 of article XIII.”
With the Executive Order power being put in check, it appears the “emergency” rule path will hit its roadblock with Restraining Orders to be filed shortly.
The opinion and case law can be downloaded here
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