Crom Carmichael Unwinds Shelby County Lawsuit Against Lee’s Executive Order Citing Sly State Law


Live from Music Row Monday 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 the original all-star panelist Crom Carmichael to the studio to examine Shelby County’s lawsuit against Governor Bill Lee’s executive order on mask mandate parental opt-out.

Leahy: That’s the little dictator in chief, Doctor Fauci, who was against the mask mandate before he was for it. That guy. Now he wants everybody to get vaccinated. Here in Shelby County, Tennessee, the mayor is suing Governor Bill Lee over his mask executive order.

Carmichael: That’s the Mayor of Shelby County, not the Mayor of Memphis, correct?

Leahy: Yeah. It’s Shelby County itself. Yeah. Correct. They announced a lawsuit against Governor Lee over his executive order. Now, that executive order was sort of an attempt to kind of split the baby, in my view, because he said he gave school boards the authority. He claimed.

We talked about this before. I don’t think he did but he did say he would give the school board the authority to enforce mass mandates. But then gave parents the option of opting out. That’s what his executive order was.

I said at the time that Shelby County and Davidson County would sue. They did sue. The angle that they chose, actually, interestingly enough, Shelby County is one of the six counties where the Public Health Department has the ability to act independently according to state law.

They’ve been reigned in by the Tennessee General Assembly. But it’s very interesting the angle that they use. The lawsuit filed by the Shelby County Health Department claims that their authority supersedes the authority of the governor’s executive order based upon a provision of the state law codified in Section 68-2-609-4 which states, ‘the county health officer is empowered to order rules and regulations as are necessary or appropriate to protect the general health and safety of the county.

A little twist on this. That section was slipped into a law passed by this General Assembly in May of this year. Signed into law. I actually talked to many of the state legislators who passed this law. I don’t remember that coming in.

They’re not sure exactly where it came in. I looked at the law. It was passed by both the Senate and the General Assembly of the House and signed by the governor.

It’s a very vague part of the law. And it appears to provide the county health department’s far broader and vaguer authority than the Tennessee General Assembly I know intended. But nonetheless, that’s what they’re using to hang this lawsuit on. How about that?

Carmichael: If the court ruled that the law has been written and the way you described it applies, then it’ll be up to the General Assembly to change it. If the General Assembly didn’t intend for it to be in there in the first place.

Leahy: I know they didn’t intend it, that’s for sure.

Carmichael: If they voted for it. And the governor signed it, then it’s in there.

Leahy: It’s in the law.

Carmichael: This is like Obamacare. Nobody knew what was in Obamacare when they voted for it.

Leahy: I think what happened on this case at the very last minute, somebody slipped that in.

Carmichael: I understand.

Leahy: That’s what happened.

Carmichael: I’m saying, if it got slipped in and then that was part of the bill, then it’s there. I’m not throwing anybody under the bus here. I’m just saying this is how legislation that is supposed to be good can end up being bad because somebody cleverly…

Leahy: Cleverly.

Carmichael: Cleverly slips something unbeknownst to the people who vote in favor of something. Maybe the way to fix that for the legislature is for the legislature to pass a law saying that nothing new can be added after, some. I don’t know how you do that. But if this is what happened then I have a lot of confidence that the legislature, when it comes back into session, we’ll fix it. Or Bill Lee, if he wanted to, could call a quick special session.

Leahy: That’s what ought to happen.

Carmichael: Yeah, a quick special session, because this affects this school year that just started.

Leahy: So let me just continue on this line. The law does say this and let’s kind of follow through on it and get your reaction to it. The law says the county health officer is empowered to order rules and regulations as are necessary or appropriate to protect the general health and safety of the county.

Period. That’s what the law says. The way the public health Authority in Shelby County has interpreted that, saying, oh, we can push past any rule that we think is necessarily appropriate.

We think, like the CDC thinks, that for no scientific reason, but nonetheless, that masks for kids two and over should happen everywhere. What is the logic of that? If you are the judge hearing that case, how would you respond?

Carmichael: Well, first of all, let me be clear. I’m not a judge.

Leahy: I know but play along. (Chuckles) 

Carmichael: Let me go back. This is a little bit like I had an errant opinion on the very first referendum here in Nashville, where Judge Lyle voted that the referendum, as it was written, could not stand.

Judge Lyle was correct because what happened was the group of people who put that referendum together conflated a whole bunch of different issues into one single one. In other words, you couldn’t vote for one thing.

You had to vote for all or nothing. And Judge Lyle said, that’s not the way referendums are designed. That’s not the way the charter allows for a referendum. I’m going to get to this case.

I want to say Judge Lyle ruled correctly in that case even though the giant preponderance of that thing was about the one issue on the property taxes, the people who put the referendum together made a mistake and put a whole bunch of other things in there trying to get other things passed because people would be against the property tax. Now the judge is hearing this case. And now you get into these words like reasonable.

Leahy: Necessary or appropriate.

Carmichael: Necessary or appropriate.

Leahy: Good grief. What is that?

Carmichael: That then becomes the question, is it necessary and appropriate? Did it say necessary or?

Leahy: It says, are necessary or appropriate to protect the general health.

Carmichael: So it could be one or the other. According to that language.

Leahy: The judge then is going to look at this and say, well, am I the one to determine if these rules are necessary, appropriate, or is the Shelby County Health Department the one?

Carmichael: Well, ultimately, the judge is going to have to determine whether or not the edict put out by the Health Department in Shelby County, whether or not it is the judge is going to have to decide whether or not that ruling of two-year-olds is necessary or appropriate. Not both. It doesn’t have to be both.

Leahy: Either one.

Carmichael: It can be either one.

Leahy: To me, you look at that and you’ve got the CDC saying it is necessary and appropriate. And then you’ve got every other study showing there’s no evidence that these masks have any impact. The judge is going to have to determine that. It’s going to go to the Supreme Court.

Carmichael: Then it goes to the Supreme Court in the state. And if the court rules in favor of Shelby County then it will be up to the legislature.

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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.














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