Most people are unaware that the State of Illinois already had a Pandemic Response Plan in place. This plan was revised this March just as the Governor began issuing business closure and stay in place orders. This plan was prepared by the Illinois Department of Public Health (“IDPH”), which is the agency that has been empowered by the legislature in 20 ILCS 2305/2 with the Supreme Authority in matters of isolation and quarantine. While the plan is 127 pages, the relevant section 4.0 Restriction of Movement or Activities to Control Disease Spread, is found on pages 66-74.
The plan found that the use of “Quarantine (a period of isolation to prevent disease spread) is not effective in controlling multiple influenza outbreaks in large, immunologically naive populations, because the disease spreads too rapidly to identify and to control chains of transmission. Even if quarantine were somewhat effective in controlling influenza in large populations, it would not be feasible to implement and enforce with available resources, and would damage the economy by reducing the workforce. Most people will voluntarily quarantine themselves in their home.” page 67
The plan also summarizes the existing law regarding the methods and procedures required to impose isolation, quarantine, or closure, which is found in 20 ILCS 2305/2.
The IDPH has supreme authority in matters of quarantine and in an emergency situation, may issue immediate orders without prior consent or court order for isolation, quarantine, and closure. HOWEVER, this power is specifically limited. The IDPH must within 48 hours, gain consent of the person or owner or request a a court order. “No person may be order to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public, however, except with the consent of the person or the owner of the place or upon the order of a court of competent jurisdiction. 20 ILCS 2305/2(c)
In order to obtain a court order, IDPH must prove, by clear and convincing evidence, that the public’s heath and welfare are significantly endangered and all other reasonable means of correcting the problem have been exhausted and no less restrictive alternative exists.
Finally, the IDPH has delegated its authority not to the governor, but to local health departments.
The existing law and plan is a careful balance between the public health and the fundamental rights of the individual citizens. It does not allow for a politician to make the determination who is and who isn’t essential. It recognizes that all citizens are essential and their fundamental liberties must be protected by quick judicial review.
The question must be asked, why has the Governor disregarded the IDPH’s recommendations and plan? How can the Governor exercise any more authority than that given to the the IDPH which has supreme authority?
When politicians put themselves above the law and refuse to subject themselves to judicial review, all of our liberties are in danger.