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Wednesday, June 24, 2020

Attorney General Issues Opinion on Successive Emergency Proclamations

Sometimes we forget that the Illinois Attorney General issues opinions outside of its PAC office and that are unrelated to FOIA and OMA complaints. Recently, the Attorney General issued a formal opinion relating to COVID-19 in response to the following question:
Can the Governor exercise emergency powers for more than 30 days after making a disaster declaration under the Illinois Emergency Management Agency Act (Act)? 
On May 20, 2020, the Attorney General answered that question in Opinion 20-002, opining that the Act’s 30-day restriction on the Governor’s emergency powers does not prevent the Governor from making successive disaster declarations, which enable the Governor to exercise emergency powers for more than 30 days. That opinion reconsidered a previous opinion issued in 2001, that concluded that the Governor’s emergency powers could not be extended beyond 30 days without legislative approval. However, 

In Opinion 20-002, the Attorney General also acknowledges that the Illinois legislature deliberately excluded any provision that would require the Governor to convene the General Assembly into session in order to issue an emergency proclamation under section 7 of the Act. By comparison, section 11 of the Act limits local disaster declarations to 7 days, unless the declaration is continued or renewed “by and with the consent of the governing board of the political subdivision.” So, the Attorney General noted that if the General Assembly wanted to similarly limit the Governor’s authority to exercise emergency powers for more than 30 days following an emergency proclamation, the General Assembly would have said so in the statute.

Notably, the General Assembly has also made significant legislative changes to the Act since the Attorney General issued its 2001 opinion. Specifically, the Act’s definition of a “disaster” now expressly includes “public health emergencies.” Since public health emergencies can clearly extend beyond 30 days and involve situations where the General Assembly would be unable to safely convene, the Attorney General noted that the Act’s plain language and legislative history support the Governor’s authority to issue successive emergency proclamations and exercise emergency powers for more than 30 days during ongoing emergencies without seeking legislative approval.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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