For what seems like an eternity, but probably just for the past year or so, infamous COVID attorney Thomas DeVore has been citing the first paragraph of Section 2 of the Illinois Department of Public Health Act to claim that only IDPH has the power to quarantine or isolate Illinoisans.

Indeed, the statute clearly states at the top of Section 2 that IDPH has “supreme authority in matters of quarantine and isolation.” Those powers come with some strong individual consent and due process checks and balances, including the right to judicial review.

Sangamon County Circuit Court Judge Raylene Grischow agreed with DeVore’s argument in early February when she issued her temporary restraining order on the grounds that the state’s school mandates for masks, testing and vaccination were a “type of quarantine” and that local school districts were not complying with “any due process under the IDPH Act.”

The appellate court did not subsequently address the merits of the case because, it ruled, the issue was moot after the legislature’s Joint Committee on Administrative Rules voted to suspend an emergency IDPH rule to enforce the governor’s executive order, which was issued under the broad and sweeping authority given to the governor during declared disasters by the Illinois Emergency Management Act. The DeVore lawsuit claimed, and Judge Grischow concurred, that IDPH’s authority superseded the IEMA law.

However, the state’s recent appeal to the Illinois Supreme Court points out a huge flaw in the arguments made by Judge Grischow and newly minted attorney general candidate DeVore.

At the very end of that very same IDPH Act Section 2 cited above is this clear language: “Nothing in this Section shall supersede the current National Incident Management System and the Illinois Emergency Operation Plan or response plans and procedures established pursuant to IEMA statutes.” The issue was previously touched on by an appellate court ruling way back in November of 2020 which stated that a restaurant’s lawsuit was “meritless” on its Section 2 claims. IEMA, not IDPH, should control disaster response.

The state’s appeal also brings up the trick box constructed by the appellate court’s ruling that the issue was moot without also lifting Grischow’s TRO, which would’ve been logical because there is no longer an active emergency IDPH rule on the books. “(A)s it stands, the appellate court’s decision has the effect of upholding the TRO while insulating it from further review on the merits.” The state’s appeal asks that, at the very least, the Supreme Court toss the TRO.

This legal battle is more about the future than the present. The state’s mask mandate begins phasing out on Monday. Before the Grischow ruling, the school mask mandate was expected to be lifted after spring break, when the weather warmed up. But there’s always the next variant and, even if this BA.2 thing turns out to be a dud, it’s an absolute certainty that another deadly pandemic will occur sometime or another. The Illinois Supreme Court must finally step in. Legislators need to know whether they have to adjust the statutes going forward or if the ones on the books are adequate and merely misinterpreted by a circuit court judge.

I mean, if you want to see what life would be like if DeVore and his clients prevail, just look at the lawsuit he filed on behalf of Rep. Blaine Wilhour (R-Beecher City), who was ejected from the House floor because he refused to comply with the chamber’s rules, passed by a majority of its members, on mask-wearing during session.

“Wilhour has a right to insist he not be compelled to undergo quarantine, which includes masking, which is purported to limit the spread of an infectious disease, unless Wilhour is first afforded his procedural and substantive due process rights as provided under Illinois law,” the lawsuit declares. Illinois House Speaker Chris Welch “does not have any lawful authority to demand or require any type of quarantine, upon Wilhour to allegedly prevent the spread of an infectious disease, and certainly not without having first provided the clear due process provided by Illinois law.”

Rep. Wilhour was allowed, however, to participate remotely, rendering part of the lawsuit a flat-out lie for alleging his removal irreparably harmed his constituents “by having their representative unlawfully removed from the legislative process.”

But, if DeVore wins, the Illinois House of Representatives would have to endure a court hearing for each and every objector before enforcing a facemask rule. Now, imagine that procedure throughout the land, in every school and place of business when the next deadly pandemic strikes.

This cannot be allowed to stand.

Rich Miller publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.