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.
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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
Mr. Fowler doesn’t appear to realize that his statement “ 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.” has been the status quo for 20 plus years… pay attention to the plethora of data available over the last 20 years and scrutinize who is actually serving prison sentences in Tennessee. Non violent criminals and addicts. It’s despicable what we have been wasting our tax dollars on…
Further, I take much umbrage at the assertion of Mr. Bunce and Ms. Julie that COVID is not serious. A true medical concern has been been politicized but both sides… and that’s a shame because people have died and continued to die over it. I know people that have died and I know people that contracted this disease and I will wear a mask in public because that is the best we have right now… and I’ll do it those that I loved who have died and those that have become gravely ill.
Remember the GOP caucus they just had in Murfreesboro, they never allowed all the candidates running for Senator to be questioned and answer.
This GOP feed the people just enough scrapes off the table to keep them voting for “THE CANDIDATES” they chose to support and in turn will support the GOP.
And by people going along with the GOP candidates, instead of making up their own minds, the power of their vote is nullified, so is any fear of the candidate losing an election,
Because they know most of you are only going to think whatever they tell you to think.
Not much difference between Democrat and Republican voters, a large portion in both parties are “easily fooled”.
I really doubt if the legislature will ever correct this wrong. They are the ones who ran for their basements at the first sign of a problem. When they finally reconvened for a very short time the Senate did virtually nothing. Of course the GOP dominated Senate behaves like a bunch of liberal Democrats. And the Representatives are hardly any better.
Our County Executive runs as a conservative Republican but his behavior is that of a Nashville liberal. A fraud for sure.
The Republican tea party took representative government away from Tennesseans when they gerrymandered most precincts to make sure that not only Republicans, but far far-right racist ones got elected and re-elected. Now, they have the gall to say they want representative government for all! Gimme a break!
David Fowler thank you for your wise impute. I hope the legislators in our House and Senate read this article and move to have a special session on behalf of the people of Tenn. A reset in our government is long over-due.
You are welcome. I hope they do as well.
Please let this Governor be and he will advise the legislature how to handle Pandemics based on instructions he receives from the federal government and CDC. The legislature should make laws that deal with regulating our business lives….not personal.
I don’t see how the Legislature is going to restore “representative government” when they are about to go into a special session to enact legislation that only a minority of Tennesseans want. Legislation to provide immunity from Covid lawsuits to business interests is only on the top agenda of businesswhiners.
Where would the legislators take a class? Our Bill Gates purchased, tested by Pearson, Common Core “state” Standards schools (that are closed and still collecting tax dollars)? The education system pushed directly to the executive branch and school board through the NGA, CCSSO and Gates’ bribes, bypassing the people and never requested by them?
The Republican super majority has abandoned many opportunities to repeal unconstitutional state “laws”, 2nd amendment tax and infringement, civil asset forfeiture, taxpayer-funded corporate welfare agreed upon in secret meetings, no due process traffic scameras to name a few.
They abandoned traceable, recountable, paper ballots in favor of the untraceable, hackable electronic machines once they gained power.
They lied with the help of Fred Thompson and other legislator/attorney prostitutes (yes you Kelsey and Norris and Overbey) to amend the state constitution to eliminate the people from voting for the judicial branch and let themselves choose the third branch of state government. Bill Lee is just business as usual. Following the globalist depopulation agenda set forth in the 2010 Rockefeller Foundation “Scenarios for the Future of Technology and International Development” Lock Step Plan. Abortions are “essential” to depopulate and could not be threatened with lockdown. Mandating wearing do-nothing masks is evil. If there ever is a real virus health threat you will now have a false hope in your executive-ordered “non-medical grade” masks (or even medical grade for that matter). These executive actions demonstrate a severe lack of scientific competence to make health related decisions for millions or malicious intent. Either way, the public loses.
The General Assembly, like much of the country, have bought into the fear created by leftists at all levels who want to keep the country shut down.