Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed David Fowler who served in the Tennessee state Senate for 12 years before joining the Family Action Council of Tennessee (FACT) as president in 2006 to the newsmakers line.
During the second hour, Fowler discussed his recent commentary regarding Governor Bill Lee’s executive order granting 89 county mayors of Tennessee that do not have their own health departments the power to mandate masks. He added that the most troublesome thing with the order is that the governor has delegated legislative authority essentially to local county mayors which creates a separation of power problem.
Leahy: We are joined now on our newsmaker line with a very good friend. Former state senator and now president of the Family Action Council of Tennessee, David Fowler. Good morning David.
Fowler: Good morning. It’s great to be with you.
Leahy: It’s great to have you. You had a spectacular commentary and you really articulated much more clearly than I have on the program some the objections to these face mask orders coming about. A lead commentary at The Tennessee Star. Will Tennessee’s Representatives Restore Representative Government to Tennessee? Let me read the first paragraph you wrote and then get your reaction.
Leahy: 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.
What a great opening paragraph.
Fowler: (Chuckles) Well thank you. It proves that I’m not perfect. One thing that I would say to just your listeners. I don’t know if I put this in the commentary. But I think I did. The bill itself was 30 pages long. And it was creating the Tennessee Emergency Management Agency to develop a plan for the state when we do have emergencies.
Natural disasters. Great upheavals of unrest like we are having and other such things. But there was about two and a half to three pages that dealt with the executive branch, of course, carrying out the plan. Because that’s what the executive branch does. It carries outlaw. And I remember some of the debate about it but not a whole lot.
And as I look back I probably should have asked more questions about that section and thought more about it. But you are doing on the whole a good thing. It’s good to have an emergency management plan. And so that’s what happens sometimes with legislators. You pass a 30-page bill and 27 pages of it are fine.
It’s the three that you made certain assumptions about as to how they would be used that creates the problem. And also in the commentary, the law does make it clear that the governor can’t suspend the enforcement of laws. And when you think about that the executive branch is its own constitutional office and can decide not to enforce a law because he believes its unconstitutional. And then of course the legislature has remedies that it can imply if they think that it should.
And voters have remedies. The question here becomes to be the most troublesome thing is that the governor has delegated legislative authority essentially to local county mayors. Mayor Andy Ogles down in Columbia texted me the other day and said the governor made me the state Senate and the state House to decide that I’m going to require masks.
And then apply a state criminal penalty to it. I said that to me just a terrible separation of powers problem. And people I hate to say it many legislators even understand that concept very well. I don’t think many people understand that concept well. They don’t understand why it’s so important.
The separation of powers is an essential factor in the preservation of civil liberty and self-government by representation. So that powers are not concentrated in the hands of one or two branches of government but they are all separate with checks and balances. The emails I get from time to time on this is, well we need to wear a mask. The question to me is not whether masks are good or bad, the question is are we going to uphold the Constitution and hold representative government.
Leahy: Let me go on that. It’s interesting because there are two elements to this. The first is the question you pose is, are masks good or bad? That’s a scientific issue that legislators can debate. But the question is by what authority does the governor give 89 county mayors the right to tell citizens in those counties that they must wear a mask. That’s the key element here…
Fowler: That’s right.
Leahy: That you are focused on. But let me step back and ask this. In those six counties that have their own public health departments, do the county mayors there in their public health departments have the legal authority to force the residents of those counties to wear a mask?
Fowler: Well, I would say this, I didn’t focus on that question but I would still say no.
Leahy: Well I would say the same thing. I’m glad we’re in agreement. (Chuckles)
Fowler: But at least I would say this, there is a statute that authorizes county health departments to take actions in those counties. So if I wanted to play the devil’s advocate as I would do in law school, right? I’d argue one side of the case then I’d have to turn around and argue the other side. Well, they are at least acting according to a statute.
Now that statute may be overly broad. It may be vague. But at least there is a pretense to legislative self-governing representation having been active there. And if you’ll notice what’s interesting to me is that the governor’s order did not require people to wear masks.
Leahy: No. The governor allowed the 89 county mayors that don’t have their own public health department and allowed them to order people to wear masks.
Fowler: That’s right. The other thing I was talking to one of my lawyer friends who’s brilliant. I shouldn’t say this but it implies there are no brilliant lawyers. He lives out of state. He works for a national public interest law firm. Brilliant brilliant guy.
And he said, you really have a problem too here. If a county mayor can decide like in Williamson County this is a class A misdemeanor but in Davidson County, it’s a class C misdemeanor you have state law being applied unequally to the same conduct. That ought to be a sure signal we have an equal protection problem.
Leahy: Now is that the case?
Fowler: Yes. Yes. I’ve got up to a $2,500 fine looking at me and up to a year in jail for the same conduct in Davidson County that is a class C misdemeanor.
Leahy: What’s the difference between a Class A and Class C.
Fowler: Class C is up to 50 or 100, and up to 50 days in jail.
Leahy: So in Williamson County its a class A?
Leahy: Now, Rogers Anderson the mayor has said that everyone in Williamson County must wear these masks. He cited, by the way, no medical studies for that. He just did it because the governor gave him that authority which you argue and I agree is illegal to do that.
Fowler: Yes. Yes. What I don’t know is, you know, I’m not a revolutionist. I’m not lets burn it to the ground over the first abuse of authority. And as I said in my article, I can point the finger at the governor but there is a law and does allow him to coordinate with local governments.
Now the way it’s worded I would argue that what that’s dealing with, for instance, if there is a natural disaster, you get with the local government and you say hey, we’ve got to close these roads off. Have the police officers do this. Have the sheriff do this. This site needs to be condemned so if there is radiation or whatever it is. Not delegating authority to make state criminal law. That’s a whole other thing.
Leahy: Let me ask you a question in terms of a remedy. Let’s say you are living in Williamson County and you are charged with a Class A misdemeanor for not wearing a mask outside. What are your legal remedies at that point?
Fowler: (Sighs) If you get arrested and the DA prosecutes you, you would have to defend on the grounds that the order itself is unlawful. You would assert your constitutional defenses.
Listen to the full second hour here:
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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “David Fowler” by Brian Stansberry. CC BY 3.0. Background Photo “Tennessee Capitol” by FaceMePLS. CC BY 2.0.