* Rebecca Anzel at Capitol News Illinois…

Illinois’ attorney general asked a federal judge Monday to dismiss a lawsuit alleging Gov. JB Pritzker’s executive orders closing non-essential businesses and workplaces are unconstitutional.

A group of Chicagoland business owners argued the governor’s COVID-19 restrictions amount to the confiscation of private property without monetary compensation. Such an action would violate the U.S. and Illinois constitutions, they say.

Those orders “caused the seizure of private property, business interests and livelihoods of individuals across the state, forcing indefinite closures and the layoff of hundreds of thousands of people,” according to the group’s complaint, an amended version of which was filed in June. […]

Alan Bruggeman, a Mokena-based attorney representing the group, wrote in a court filing that by classifying some businesses as essential and others as non-essential, Pritzker’s executive orders were “applied in a completely arbitrary and capricious manner.”

The governor’s actions, he added, “simply picked winners and losers without regard to” Illinoisans’ right to petition the government to reconsider its COVID-19-related rules.

* On to the state’s counter-argument. Take special note of the “police powers” argument…

1. Plaintiffs filed their First Amended Complaint on June 4, 2020, alleging that the Executive Orders issued by Governor Pritzker to address the COVID-19 pandemic violated the Takings Clause of the Fifth Amendment and Illinois Constitution; Plaintiffs also bring claims under 42 U.S.C. § 1983 for substantive and procedural due process violations. See ECF No. 9.

2. However, all of Plaintiffs’ claims are unable to survive a motion to dismiss.

3. First, Plaintiffs’ claims are barred by the Eleventh Amendment as Plaintiffs cannot seek damages in Federal Court against the State or the Governor in his official capacity. This includes Plaintiffs’ claims for equitable relief as those claims also seek compensation from the State treasury and, further, there is an available state remedy to Plaintiffs.

4. This court also lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) for any claims for injunctive relief.

5. Even if Plaintiffs’ claims were not barred by the Eleventh Amendment or for a lack of subject matter jurisdiction, they have failed to plead a takings claim under the Fifth Amendment or Illinois Constitution because Governor Pritzker’s actions were taken pursuant to his authority under the public necessity or police powers doctrines. Even under a traditional takings analysis, Plaintiffs’ takings claims fail as they were not subject to a physical invasion or per se regulatory taking or a compensable regulatory taking under the Fifth Amendment or Illinois Constitution. 6. Plaintiffs’ substantive due process claim fails as they have failed to establish any liberty interest that was violated and the Governor’s decisions were related to a legitimate government interest.

7. Finally, Plaintiffs’ procedural due process claim fails as they were not entitled to a pre-deprivation hearing before the Executive Orders went into effect and there are adequate post-deprivation procedures in place that Plaintiffs could pursue.

The full argument is here.