Illinois Appellate Court rules against restaurant and gives the Governor unlimited executive power

An Illinois Appellate Court overturned a trial court decision which granted a temporary restraining order (TRO) precluding Governor J.B. Pritzker from implementing an executive order, which imposed a ban on indoor seating for bars and restaurants in four Illinois counties. Fox Fire Tavern’s (Fox Fire) filed the lawsuit as its business was subject to these restrictions.  Those seeking a TRO, must establish that (1) it has a protected right; (2) it will suffer irreparable harm if injunctive relief is not granted; (3) its remedy at law is inadequate; and (4) there is a likelihood of success on the merits.

Fox Fire filed for a TRO claiming that the governor’s executive order exceeded his authority under the Illinois Emergency Powers Act. Under the Emergency Powers Act, 20 ILCS 3305/7, “In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers.”

Pursuant to this statute, Governor Pritzker issued a first Executive Order on March 9, 2020, proclaiming that COVID-19 was a disaster which allowed him to invoke emergency powers.

Subsequently, Governor Pritzker issued nine executive orders in total. Often times issuing the executive orders before the other executive order expired.

Fox Fire contested specifically an Executive Order issued on October 16, 2020, which prohibited indoor seating for restaurants. They claimed that the Emergency Powers Act did not provide the Governor the power to extend his thirty-day power, and the legislature never granted the Governor such a privilege.


The Court ruled against Fox Fire claiming they did not establish a likelihood of success on the merits.

Fox Fire made the claim that the Governor exceeded his power under the Emergency Powers Act, when he issued an Executive Order beyond the 30 days of his initial Executive Order (issued March 9, 2020). The trail court agreed and granted the TRO.

The appellate court reversed and held the lower court abused its discretion by issuing the TRO.

The dispositive issue was whether the Emergency Powers Act limited the Governor’s ability to exercise his power to 30 days.

Although the Court acknowledged that the statute does limit the Governor’s power for a period not to exceed 30 days, the statute does not preclude the governor from issuing multiple proclamations, each with its own 30-day grant of emergency power arising from a single ongoing disaster.

There are other elements of this decision such as whether the Department of Public Health as opposed to the Governor could enforce quarantine orders, but for the sake of this blog post, I am focusing on the statutory interpretation issue.

Statutory language has no value

The Court’s ruling guts the statutory limitations placed on executive power, and provides unlimited executive power with seemingly little to no restraints.

The Emergency Powers Act’s statutory language, limits the Governor’s authority to exercise emergency power to 30 days. Under the Courts ruling, the statutory limits are irrelevant, because they don’t stop the Governor from continuing to utilize executive powers. The Court by deeming the 30-day limitation useless, provides the Governor unlimited power to act subject to no limitations.

The Emergency Powers Act’s statutory language is clear on the 30-day deadline for exercising emergency powers; however, it is not clear from the statutory language that the Governor can issue unlimited Executive Orders as an exception to the 30-day limitation.

The Court has read the statutory limitation out of existence and has provided the Governor unlimited power and developed a new policy position that the Governor possesses a work around to a specific statutory limitation.

It remains to be seen if this case will be appealed to the Illinois Supreme Court. If so, the Illinois Supreme Court needs to review carefully whether specific statutory limitation can be ignored, and whether exceptions to the rule, which do not reside in the specific statute’s language are a plausible exception to the limitation.