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 Maury County Mayor Andy Ogles in the studio to discuss the discrepancy of whether or not Governor Bill Lee has the legal authority to declare an ongoing state of emergency.
Leahy: In studio with me, a good friend. Mayor of Maury county. A good friend, mayor of Maury County, Andy O goes, Well, you know that’s Clay and Buck. They said that Governor Bill Lee will be in the studio with them today talking about his executive order.
And it will be interesting. I can’t wait to hear that interview. I’m looking at this, and I don’t think that the governor actually has the legal authority to declare an ongoing state of emergency in the state for one year and five months.
I think he’s overreached his bounds in that regard. And that means, in my view, that this executive order that he’s issued limiting masks or saying that parents can opt-out of masks. I don’t think although he asserts that he has the authority of law.
If the underlying state of emergency is not lawful, then that order is not lawful. That’s my view on it. What do you think, Andy?
Ogles: Well, if you go to the law. 58-2-107A1 says in the second sentence. So it’s defining when the governor can declare a state of emergency. In the event of an emergency. So that word is not clarified.
So emergency can really be anything. But there’s a caveat. Beyond local control. The governor or governor can, et cetera, et cetera, issue a state of emergency. So my question would be is one, how do you define an emergency?
Are we in an emergency such that we need to be in a continued state of emergency, thus giving up taking away the power of the General Assembly, which, by the way, is a big deal! We have three branches of government for a reason.
We recoiled against the theocracy and the aristocracy a long time ago. And beyond local control. And so my question would be is early on in the pandemic, we needed it by a PPE and needed to acquire it quickly.
When you buy something through the normal governmental purchasing process, it goes through committee. It’s a month to a two-month long process. That allowed me to just go ahead and purchase it.
Now, I’m accountable for all of those expenditures after the fact. But I needed to acquire 10,000 masks for all of my first responders, and I needed to do it quickly. That was a situation where I needed the ability to do it and do so quickly.
But we haven’t been operating that way in a year. And so what about this is beyond local control? We are buying and spending money through the normal course of business. Our school boards have the ability to vote and to meet.
There’s nothing preventing your school boards from meeting. To that point, the Williamson County School Board met and 1200 parents showed up. So it’s not like that the people’s voice can’t be heard.
So what about this is beyond local control? I don’t think that we are in a state of emergency as defined by state law any longer.
Furthermore, for the governor to step in and to take away power when in reality the purpose of the emergency powers is to empower the local government to manage a crisis. So all he did was restrict local government! That’s not how it’s supposed to be used.
Leahy: The other part about this is in state law, you look for the law that says the governor has the authority to declare a state of emergency under these standards, it will last for this long.
And when he has declared a state of emergency, he can issue any order he wants, and it will have the force of law. That is not what the statute says. That’s what he’s been doing. But that’s not what the statute says. I’ll go back to this again.
It’s very vague. It’s an assumed power that hasn’t been challenged in court. This is from the 2019 Tennessee Code. Title 58, Chapter two, Section 107A1. 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 may assume direct operational control over all or any of the emergency management functions within this state. That’s what it says.
Well, an emergency beyond local control? Is that where we are right now? Is this where we are with the pandemic one year and five months after the first declaration of emergency? Is this an emergency beyond local control?
Ogles: No. And again, when you look at the original emergency powers that were there to equip and empower local governments to manage the crisis. This last executive order strips away the power of the local government.
It’s contrary to the intent. When in doubt, go to the state constitution. Article one, Section one of the constitution of the state of Tennessee affirms that all power is inherent in the people.
In other words, we’re in control. It also says that Article one, Section two compels citizens of the state of Tennessee to stand up and resist that which we, the people surmise is authoritarian and in violation of our inalienable rights and therefore arbitrary power.
And so I would argue that right now we’re in a situation where Article one, Section one, Article one, Section two apply, where we’ve reached the point of arbitrary power as defined by the state constitution.
Leahy: I don’t read articles from The Tennessean. (Ogles chuckles) But in this case, I’m going to read an article from one year ago, one year ago, August of 2020, by Natalie Allison of The Tennesseean.
And let me just read this and get your reaction. As Governor Lee attempted to respond to the coronavirus pandemic this spring, a virus whose full effects remained uncertain. Some Republican legislators were outraged at his decision to issue executive orders reigning in gatherings and certain types of commerce.
On Thursday, lawmakers eager to find out whether Lee had acted outside his statutory authority, heard from two experts. The governor, who said the governor has acted appropriately, they said, although the legislature still has the ability to reign in his executive authority.
One of the guys, Alberto Gonzalez, Dean of Belmont University School of Law. P.S., no knowledge of Tennessee law from him? None. He said to me, it’s not really a question of does the governor has the authority to do what he’s done.
Perhaps a better use of with all due respect of the committee time is to look at what limitations should there be? Well, he doesn’t cite anything in that.
William Cook, a former Tennessee Supreme Court Justice and current Dean of the National School of Law, spoke to an ad hoc legislative committee on Thursday. Cook said the law in question was passed by the legislature in 2000, and that’s the one we cited that gives the Tennessee governor broad authority once a state of emergency or disaster declaration is in place.
And again, I don’t see where that standard is set in law. Maybe it’s there. I didn’t see it. So here is what Attorney General Slattery said at the time.
The General Assembly has vested the governor with exclusive responsibility and authority to assume control over all aspects of the state’s response to an emergency, such as the COVID-19 pandemic. And again, these are assertions, but I don’t think see the statute backing it up, do you?
Ogles: No. And when you go back to 58-2-107, what’s interesting and what’s been ignored in these conversations is that there are some limitations to the statute itself, which has been largely glossed over.
I was one of those mayors who immediately stood up and said, hey, I’m not going to issue a mask mandate because the governor does not have the authority to give me that power.
And so how did I arrive at that conclusion? When you look at again the statute that has been cited by the attorneys general and the administration for his power, there are some buts in there.
And the letter, H says, and is talking about the governor shall delegate emergency responsibilities to officers and agencies of the state and the political subdivision. So political subdivisions. That’s talking about me as County Mayor.
And as County Mayor, I’m in charge of homeland security for Maury County. But it says and it says it not once but twice, the threat of or prior to an emergency.
Leahy: Let’s talk about that after the break. But right now, I don’t see the statutory authority for the governor continuing the state of emergency. We’ll be back after this.
– – –