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Fox News senior judicial analyst Judge Andrew Napolitano emphatically stated Tuesday that “individuals should decide what’s essential” — not the government — after the Department of Justice intervened last week in an Illinois case challenging the state’s stay-at-home order.
Speaking on “Fox & Friends,” Napolitano pointed out that “this is the first time that the federal government, through the Department of Justice, has gotten involved in litigation against a state governor.”
On Friday, the DOJ filed a statement of interest in support of a lawsuit by state lawmaker Rep. Darren Bailey, who has sought to challenge Democratic Gov. J.B. Pritzker‘s stay-at-home restrictions — challenging whether he can keep the restrictions in place longer than the 30 days allowed by state law.
Napolitano said that “the litigation was commenced by a Republican member of the state legislature who points out that Illinois law limits the governor’s emergency authorities to 30 days with no provision for beyond 30 days unless he goes to the legislature.”
Napolitano noted that Pritzker did not go to the legislature, “he went to a committee of the legislature, which isn’t the legislature.” He added that the committee was “filled with his own allies and that committee authorized him to extend his 30-day authority.”
The DOJ said: “According to the lawsuit, the Governor’s actions are not authorized by state law, as they extend beyond the 30-day time period imposed by the Illinois legislature for the Governor’s exercise of emergency powers granted under the Act.”
Pritzker has defended his orders, and has criticized Bailey for taking the legal action.
“It’s insulting. It’s dangerous and people’s safety and health have now been put at risk,” Pritzker said, according to the Associated Press. “There may be people who contract coronavirus as a result of what Darren Bailey has done.”
“Bottom line, the governor is in virgin legal territory,” Napolitano said on Tuesday, adding that “this has never happened in the state of Illinois and this is the first time the Justice Department is starting to get involved.”
He then said that it should not be up to the Department of Justice or the governor to decide what is essential, rather individuals should make that decision.
“To a short-order cook, a luncheonette is essential. To a barber, a barbershop is essential. To a retail clerk, a clothing store is essential,” Napolitano said.
“This is what happens when the government takes away our liberties and tries to make decisions that we, for 231 years in America as free people, have been making for ourselves.”
Fox News’ Adam Shaw and Brooke Singman contributed to this report.