by David Fowler
When Governor Lee’s COVID-19 Executive Order first ordered certain businesses to close, I looked up the law on which he relied and saw it passed while I was still in the state Senate. My heart sank on the assumption I probably voted for it. However, this week’s Executive Order delegating authority to county mayors to require county residents to wear facemasks or face state criminal sanctions sent me to the Tennessee Code to see if I’d really voted for a law that would allow that. I did not, and it is time we tell our state legislators to put an end to law by executive branch fiat.
The law under which the governor is operating created the Tennessee Emergency Management Agency (TEMA) and the emergency management system. Creating the agency was a good thing. But among the 27 pages of the bill creating the agency were three pages that dealt with the governor’s powers in the event of an emergency.
With respect to the conduct of private citizens in their everyday lives, the key power given to a governor in the event an emergency, which statutorily would include an epidemic, is to:
Suspend the provisions of any law, order, rule or regulation prescribing the procedures for conduct of state business or the orders or rules or regulations of any state agency, if strict compliance with the provisions of any such law, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.
This provision was cited in the Governor’s initial Executive Orders but notice the extent of the power given—it is only to suspend laws. So, a governor can legitimately suspend the enforcement of laws, for example, deadlines for renewing a driver’s license or a permitting process.
I don’t have a problem with having voted for a law that allows a governor to suspend the enforcement of a law in a state of emergency in order to mitigate the emergency.
But a governor cannot make a new law that effectively orders people not to do what is otherwise lawful to do. That power is denied to a governor by Section 2 of Article II of the Tennessee Constitution. It says, “No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.”
I assume that this is why the governor’s most recent Executive Order still does not require, but only “strongly urge[s]” Tennesseans “to wear cloth face coverings or other similar coverings in public settings.”
But, then the Order goes on to say the “county mayors in the 89 counties that do not have a locally run county health department shall have the authority to issue orders or measures requiring or recommending the wearing of face coverings within their jurisdictions.”
I won’t go through the details of the law, but I don’t think it authorizes the governor to delegate authority to a county mayor—an executive branch official for local government—to effectively decree a local law requiring facemasks in public and subject them to state criminal sanctions on those if they don’t.
Making laws by executive fiat is contrary to our constitutional form of republican government, but if the law allows a governor to delegate authority to others (county mayors) to make law by executive fiat, then the law goes too far. Moreover, it presents all kinds of constitutional problems, equal protection being one that comes to mind as state criminal sanctions now depend on what county you happen to live in.
It is easy to point the finger at the governor, but I won’t for now. I cast a vote for the law in 2000. It is now being used in ways I never envisioned. My bad.
But, by the same token, as a former state legislator, I am now pointing the finger straight at every member of the General Assembly.
The current members of the General Assembly could have dealt with this open-ended invitation to government-by-executive branch fiat during the just completed General Assembly. They did nothing.
Now, legislators have seen the executive branch of state government delegate to the executive branch of local governments the power to legislate and impose state criminal sanctions on local residents for not wearing a mask. Some county’s will and some won’t.
If a state legislator can’t think of at least two constitutional problems with this, then he or she needs a class on the state and federal constitutions.
Every state representative and state senator needs to contact the Governor immediately to strongly urge him to back off this last Executive Order and make it clear to him that they will demand from the governor or their colleagues a call for a special session to provide appropriate checks and balances in the current law.
It is time for our representatives to restore representative government in Tennessee, and if they don’t, then they don’t deserve to be called our representatives.
I, for one, will be looking to see what my representative and senator do. I hope you’ll do the same for yours. Enough is enough.
– – –
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.