Now, Bailey is evidently free to roam wherever he pleases, but he said Monday that was not the main reason he sued the governor.
“The governor was just clearly overreaching his authority and his powers,” Bailey, a farmer who represents a rural district in southern Illinois, told The Washington Post.
Bailey’s pursuit is the latest to highlight the debate about reopening economies as public health officials continue to warn against lifting restrictions too soon. Numerous states have announced plans to reopen various businesses.
Conservatives have organized mass protests at state capitals demanding that restrictions be lifted as quickly as possible. Others have taken the legal avenue, often echoing the same refrain as Bailey: executive overreach.
But to the governors, in this case Pritzker, the lawsuit ignores legitimate public health to score political points. Vowing to appeal, the governor said Monday that history will “remember those who are so blindly devoted to ideology and the pursuit of individual celebrity that they made an enemy of science and reason.”
In Bailey’s quest against Pritkzer’s order, the lawmaker argued that the governor’s continued extensions of the stay-at-home order, recently extended through May, were illegal. He charged that the Illinois Emergency Management Agency Act restricted the governor’s emergency powers to 30 days from the day he declared a disaster, which was March 9, without allowing extensions. The state sought a continuance of the case.
Clay County Circuit Judge Michael McHaney said in his Monday ruling that there was a “reasonable likelihood” that Bailey would succeed in making that argument when the court considers its merits. He said Bailey “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 ...” He agreed that Bailey has shown that he will be “irreparably harmed” without swift court intervention, although the judge did not explain his rationale.
Although McHaney’s ruling doesn’t extend to anyone except Bailey, as he is the sole plaintiff, it appears to provide a framework for other similar lawsuits around the state, which Bailey would welcome. Bailey said that he hopes his case will ultimately result in the order being invalidated for the entire state — a possibility that Pritzker appeared concerned about during his Monday news conference.
“Representative Darren Bailey’s decision to take to the courts to try and dismantle public health directives designed to keep people safe is an insult to all Illinoisans who have been lost during this covid-19 crisis,” Pritzker said, “and it’s a danger to millions of people who may get ill because of his recklessness. At best, no one is better off because of this ruling, and at worst, people’s health and safety will suffer tremendously.”
Bailey, a first-term lawmaker from Xenia, a rural town of fewer than 400 people in southern Illinois, told The Post that he thinks counties, not the governor, should have control over social distancing restrictions. That would better reflect the local circumstances, he said. In Clay County, for example, where Bailey and about 13,000 others live, there are just two reported coronavirus cases. Bailey said he has been flooded with calls from unemployed constituents, and thought he had to take action.
“The governor has recklessly created a second pandemic, and that’s the financial pandemic,” he said.
Bailey’s lawsuit follows a similar effort by Wisconsin state GOP lawmakers who sued Gov. Tony Evers (D) last week, asking the state Supreme Court to invalidate his stay-at-home order. Like Bailey, the group of lawmakers argued that Evers’s order shouldn’t apply to rural counties with significantly fewer reported covid-19 cases, while insisting that the “czar-like powers” of Evers’s appointed state health chief were illegally “unlimited in scope and indefinite in duration,” the Milwaukee Journal-Sentinel reported.
Over the past several weeks, protests organized by conservative activist groups have erupted across the country making similar cases in their respective states, whether their governors are Republicans or Democrats. The rallies have attracted thousands in cars but also thousands of others on capitol lawns, often interacting in proximity or without masks and raising fears that they are contributing to the spread of the virus.
Some who have had difficulty obtaining permits for the protests have also sued. On Monday, two California residents, a Republican candidate for Congress and a Sacramento Gun Club member, sued Gov. Gavin Newsom (D), arguing that they were illegally denied permits to protest Newsom’s stay-at-home restrictions and the state’s slow processing of gun background checks. The lawsuit demands an end to the restrictions, which have also faced bipartisan criticism from lawmakers in less affected areas, the Los Angeles Times reported.
President Trump has defended demonstrators, saying that “some governors have gone too far,” or that some state restrictions were “just too tough.” In several tweets, he appeared to incite protests, saying “LIBERATE MINNESOTA,” and repeating the tweet for several states.
Trump has warned that the federal government is “going to come down strong” if it believes states’ restrictions are too onerous. Likewise, the Conservative Action Project, a coalition of conservative leaders whose founding chairman was former attorney general Edwin Meese III, urged Attorney General William P. Barr on April 17 to review all orders for “rampant abuses of constitutional rights.”
On Monday, Barr issued a memo ordering all U.S. attorneys to “be on the lookout” for any state or local restrictions that infringe on civil liberties.
“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” he wrote in the memo.