Citizens for Limited Government and Constitutional Integrity, Inc. doing business as Tennessee Stands filed a lawsuit in Davidson County Chancery Court Monday against Governor Bill Lee on the grounds that the state statute deeming the governor’s executive orders have the full force and effect of law is unconstitutional.
Tennessee Stands founder and president Gary Humble (pictured right) along with Rodney Lunn, the plaintiffs in the case, reference Tennessee Code Annotated (T.C.A.) 58-2-107 which dates back to 2000.
The law states, in part:
(a) (1) The governor is responsible for addressing the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the governor, or, in the governor’s absence, the governor’s successor as provided by law, may assume direct operational control over all or any part of the emergency management functions within this state, and such person has the power through proper process of law to carry out this chapter. The governor is authorized to delegate such powers as the governor may deem prudent. (emphasis added)
(2) Pursuant to the authority vested in the governor under subdivision (a) (1), the governor may issue executive orders, proclamations, and rules and may amend or rescind them. Such executive orders, proclamations, and rules have the force and effect of law. (emphasis added)
As the complaint states, it is under this law that the governor “has delegated unlimited power to municipalities and county executives via numerous executive orders.”
The plaintiffs, residents of Williamson County and subject to the delegated authority of the governor, allege the delegation of power is “illegal and unconstitutional and must be declared void,” no matter how well-intentioned it may have been.
The constitutionality of T.C.A. 58-2-107 is being challenged on the grounds that it violates several Articles and Sections of the Tennessee Constitution.
Article II, Section 1 states, “The powers of the government shall be divided into three distinct departments: legislative, executive, and judicial.”
Section 2 goes on to state, “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.”
Section 3, under Legislative Department, defines “The Legislative authority of this state shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both dependent on the people.”
“The authority to make laws rests solely with the General Assembly, not the Governor,” the complaint states. Additionally, the Legislature cannot delegate its power to another department pursuant to the strict mandates in the Tennessee Constitution.
Article III describes the Executive Department and, while it authorizes no law-making power, Section 10 requires that the governor “shall take care that the laws be faithfully executed.”
Further, there is no constitutional authority for the Governor to delegate powers to county executives/mayors for their issuance of public health orders such as mask mandates, under threat of citation, arrest and incarceration.
Article VII, Section 1 of the Tennessee Constitution defines that “The qualified voters of each county shall elect for terms of four years a legislative body, a county executive, a sheriff, a trustee, a register, a county clerk and an assessor of property. Their qualifications and duties shall be prescribed by the General Assembly.” (emphasis added)
Humble covered much of the material in the complaint on the Tennessee Stands website through two videos, a preamble and a resolution he created to inform Tennessee citizens of their constitutional rights and to defend against governmental overreach.
Humble has been gathering petition signatures in support of the resolution, and announced Sunday on Facebook that over 1,000 signatures had been achieved.
Humble told The Tennessee Star that he is just a dad, husband and citizen of Tennessee who sees that no one else is fighting for his constitutional rights.
“I’d much rather be in a cabin in the woods with my boys and my wife, and not doing this,” Humble told The Star, “but it is what it is.”
From memory, Humble went on to quote Section 2 of Article I, Declaration of Rights, “That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.”
With an obvious fondness for the document, Humble said that in 1796 when the Tennessee Constitution was first drafted, Thomas Jefferson said that it was the least imperfect and the most republican of all the state constitutions at the time.
Tennessee’s Constitution was revised in 1834 and again in 1870 after the Civil War and remained unchanged until 1953, making it the longest-standing, unamended Constitution in the U.S., Humble relayed.
Humble isn’t the only one to call out state law that put the governor in a position to violate citizens’ constitutional rights.
When the legislature came back into session in June after the two-month COVID-19 recess, Rep. Bud Hulsey (R-Kingsport) sponsored an amendment to his HB 2291 filed for another purpose prior to the recess.
In his folksy but eloquent speech that caught a lot of attention, Hulsey said he thought the legislature had done the governor wrong by setting up the system for the governor to operate in.
Hulsey pointed out that his amendment “doesn’t fix all the mess that we created for the governor.”
Rather, “It strips out the fascism out of the three most egregious constitutional areas,” said Hulsey.
His legislation stated simply, “The governor or the chief executive officer of a local government shall not require a law enforcement agency or an officer thereof to enforce a provision of an executive order: (1) Requiring a private business entity to close; (2) Restricting the freedom to assemble peaceably; or (3) Restricting the freedom to travel.”
While Hulsey’s measure passed its first step in the House State Committee, it never made it to the House floor and the Senate never took it up in committee.
While the topic of the governor’s executive powers was not included in his proclamation for the Second Extraordinary Session of the 111th Tennessee General Assembly, the Speakers of the Senate and House established a Joint Ad Hoc Committee to Study Emergency Powers.
In its first of three meetings, the committee heard expert testimony last Thursday on Governor Lee’s executive orders throughout the coronavirus pandemic.
Retired Tennessee Supreme Court Justice and president and dean of Nashville School of Law William C. Koch, Jr. said Governor Bill Lee’s executive orders are entirely consistent with the inherent power in his office and granted to him in state statute.
What Koch did not address was whether the statute itself was constitutional.
In Humble’s opinion, “When no one talks about the Constitution, there’s a reason for that.”
Tennessee Stands full complaint can be read here.
Laura Baigert is a senior reporter at The Tennessee Star.