Constitutional Experts to Joint Ad Hoc Committee on Emergency Powers: The Legislature is the Check on Executive Powers

 

NASHVILLE, Tennessee – In Thursday’s meeting of the Joint Ad Hoc Committee to Study Emergency Powers, two experts on constitutional law said, that with the deference the courts afford the executive branch, it is up to the Tennessee General Assembly to put checks on the broad powers of the governor during an emergency.

In the second of three meetings, committee members heard testimony from seven individuals:  Glenn Reynolds, Professor of Law, University of Tennessee; Larry L. Crain, Crain Law Group; Herbert H. Slatery III, Attorney General of the State of Tennessee; Patrick Sheehan, Director TEMA; Dr. Lisa Piercey, Commissioner, Tennessee Department of Health; Clark Milner, Deputy Counsel to Governor Bill Lee; Brent Easley, Legislative Director to Governor Bill Lee.

In opening the meeting, House co-chair Rep. Jason Zachary (R-Knoxville) reminded committee members by reading the committee’s charge:  Study the current authority granted to the executive branch of government with regard to declaring a state of emergency and powers granted to the executive branch and judicial branch during a state of emergency and report back prior to the start of the 112th General Assembly.

Senate co-chair Sen. Ferrell Haile (R-Gallatin) recognized that there is concern within the committee about the constitutionality of the statutes. Haile’s opinion is, however, that the committee needs to “move forward with our charge working under the assumption that the laws currently in place are, in fact, constitutional.”

With members of the governor’s staff set to appear before the committee, Haile also cautioned about questions and discussions that would undermine the confidentiality between the governor and his advisors.

Reynolds, in keeping with the committee’s charge, did not speak about the existing law or its constitutionality, but considerations for the new law.

Before doing so, Reynolds made general points, the first of which was the leniency of courts with regard to remedies for public health emergencies, especially in the beginning when less is known and as long as the efforts appear to be made in good faith.

As Reynolds put it, there has to be a rational relationship to a legitimate governmental purpose – of which controlling a pandemic is obviously a legitimate one – and what the government does in response, or the courts will block it for inadequate support or contradictions to known facts or what government has said before.

Acts trenching on fundamental rights, Reynolds said, get “strict scrutiny,” meaning that government has to use the least restrictive means to achieve a compelling interest.

Reynolds said that Tennessee’s constitution is, in fact, somewhat more aggressive in protecting individual liberty.

Elaborating further on that point, Reynolds said, “As the Supreme Court has pointed out more than once, it is the only one that points out explicitly, right upfront, that there is a right to revolution against a government that is arbitrary or oppressive.”

While Tennessee’s constitution in Article I, Section 1 and 2 on the Separation of Powers reads very strict, Reynolds says the courts have been quite lenient when it comes to those sections.

In terms of “remedial legislation,” Reynolds talked to the committee about the legislature’s role.

“You all take your own oath to the constitution, and you are entitled to form your own judgement about this sort of thing, and if in your opinion if some of the things that go on constitute a constitutional violation, you’re entirely free to legislate to keep that from happening, regardless of what the courts say.”

The governor is the executive, but fundamentally what the governor is supposed to do is execute, primarily exercising powers that the legislature has delegated to him.

Reynolds also said that the governor has a lot of executive power, which comes up a lot during a crisis because of the speed and flexibility that the governor can act.

One provision that Reynolds wanted to call attention to is Article 11, Section 16, which he says the courts haven’t done very much with:

“The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever.  And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate.”

As Reynolds explained, “If they are excepted out of the general power of government, that means neither the governor, nor the legislature nor for that matter the courts have the power to act against any of those rights guaranteed in the declaration of rights.”

This takes away the balance of an interest against a right, says Reynolds, when infringing a right is not even a governmental power at all.

Due to the deference of the courts, Reynolds said the committee should consider being guided by the notion that the Tennessee constitution is especially protective of liberty.

Reynolds offered a few additional points of guidance for the committee:

• Don’t fight the last war.  This is a pandemic.  Who knows what the next disaster will be.
• They can require transparency.
• Honesty is most important.  The single best thing that government brings to the table in a crisis is public trust and that’s very easy to lose if the public thinks you’re lying to them or manipulating them.
• Set time limits for executive actions, which is the rule in a number of states.
• The state may not be as well governed in the next crisis.
• Trust the people to do the right thing, if treated fairly, honestly and they know what’s going on.

Crain testified that he watched the video of the opening session of the committee on August 20 and “the excellent remarks given by both Dean Koch and Dean Gonzales.”

After expressing his tremendous respect for both deans, Crain qualified, “[t]he questions presented here are not merely academic discussions reserved for law school debate – they pose real consequences for the lives, the freedoms and the safety and well-being of Tennesseans, in this generation and in generations to come.”

He also pointed out that the issues before the committee “cut to the very core of the system of checks and balances that exist between the Legislative and Executive branches of government which were instilled in our State Constitution on June 1st of 1796.”

While all 50 states have some sort of legislative grant of emergency powers, according to Crain, most provide a mechanism for legislative oversight when governors overreach their grant of authority.

Common to the emergency powers provisions of all 50 states, which Crain has reviewed, there are constitutional considerations common to all of them:

1. Vest the ultimate authority in the legislative branch to nullify the grant of power to the executive branch, most often accomplished by a simple joint resolution of both houses.

2. A time limit.

3. A mechanism that vests in the legislature a simple procedure for terminating the governor’s exercise of emergency powers at any time both chambers agree by joint resolution.

Crain referred to the previous testimony of Koch that the legislature has written the governor a “blank check.”

Even though, constitutionally the legislature has the inherent authority to do so, Crain pointed out there is no provision for legislative accountability or express authority to rein in the governor’s exercise of his powers.

Crain referred to the gubernatorial power established in T.C.A. 58-2-107 as “virtually unchecked.”  He was not, however, critical of Governor Lee who has acted, in his opinion, “well within the scope of authority delegated to him by this body.”

Crain concluded with some strong words for the committee.

I submit to you the Constitution of the State of Tennessee vests in this General Assembly a solemn duty and obligation to serve as a check on the ability of either branch – whether executive or judicial – to usurp its constitutional authority.

To prevent future governors from trampling civil liberties of the citizens of this great state during emergencies, some checks on their power are essential. 

If our courts will not intervene when governors abuse their discretion, even to the point of infringement of religious liberty, then our citizens must look to you – the legislature – to champion freedom and protect us from tyranny. 

I respectfully urge this committee to explore alternatives that restore a system which assures accountability and serves as a check on the broad, unlimited powers conferred on our executive branch in Tennessee in times of emergency.

Slatery III told the committee that, in light of pending lawsuits, his testimony was necessarily constrained and restricted to not prejudice the defense of state officials.

However, he did ask rhetorically four questions:  Does the governor have the authority to issue executive orders that he has?  Is T.C.A. 58-2-107 constitutional?  Are mask mandates constitutionally defensible?  Do the governor’s emergency powers and executive orders pre-empt conflicting actions by local governments?

Slatery III responded “yes” to all four of the questions.

In closing, Slatery III said, “These are very difficult times for all branches of government.  The executive branch has worked very hard.  I’ve been the recipient of early 3 a.m. emails and weekend night calls and I think Governor Lee and his team have done an exemplary job trying to lead our state.”

Sheehan and Piercey gave brief opening remarks that reviewed their roles and that of their respective departments and agencies, before engaging with the committee members for a polite question and answer period.

Easley discussed the governor’s emergency authority and the importance of it to address a time-sensitive crisis to address response and some of the actions taken by the governor during the pandemic as well as natural disasters.

Milner provided a brief summary of the legal authority for executive action in response to an emergency.

He relayed that Lee’s firmly held view is that “the current statutory framework for authority to deal with emergencies should not be substantially or meaningfully disturbed, because it provides for the immediate and decisive action, flexibility and adaptability essential to combatting emergencies.”

Upon questioning by Zachary, Milner could not name any restrictions on the governor’s powers in the time of a declared emergency, other than that related to firearms and ammunition.

Easley received high marks from several of the committee members for his responsiveness during the time of the declared emergency.

In closing the meeting, Haile announced the plan for the next meeting scheduled for Thursday, September 14 at 10 a.m.

Between now and that meeting, suggestions and recommendations should be submitted to the co-chair of the appropriate chamber by Monday, September 14, which will be analyzed and grouped together.  To provide structure for the next meeting, a document including all of the recommendations will be prepared for the committee’s discussion and subsequent vote on each individual recommendation.

Haile also said that the September 17 meeting is not the final meeting, but wraps up their charge.

“That doesn’t mean that six months down the road we won’t go back and re-look at those recommendations that we voted on and may want to tweak those to bring before members of the General Assembly for legislation.”

Haile alluded to the first meeting of the ad hoc committee when he said that they would have a better picture 18 months from now.

“As I said previously, I believe the farther we get down the road, the better our legislation will be.”

“That’s the point of this is, that we want something coming out of these three meetings positive, but we don’t want to close the door and say we’ve got it all figured out.  We want to have the opportunity to come back and re-examine that.”

“Your chairman will have a bill that can be amended for these recommendations and then sometime in the middle of March, we’ll come back as a committee and review this and then we’ll go forward from that point in time.”

Zachary said he agrees that it is important to be deliberative in their process and to reconvene even during session when there is a clearer picture.

For the House members and Tennesseans watching, Zachary said, though, he plans on bringing legislation in January to address some of the challenges they feel they will see if there is another type of pandemic or health crisis.

While Zachary said he is all for being deliberative, he was also more committal and set the expectation that from the House perspective, legislation will be brought forward in January.

Larry Crain’s full testimony can be read here.

The video of the Joint Ad Hoc Committee on Emergency Powers can be watched here.

– – –

Laura Baigert is a senior reporter at The Tennessee Star.