Live from Music Row Friday 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 State Senator Mike Bell (R-Etowah) to the newsmaker line to go into detail and background of what motivated him to sponsor the SB2855 bill.
Leahy: We are joined on our newsmaker line now by our very good friend, State Senator Mike Bell. Good morning, Senator Bell. How are you? What are you doing this morning?
Bell: Well, I’m sitting on my couch with a cup of coffee beside me and my dog in my lap.
Leahy: You know, you sound like you’re having a great life there, Senator Bell. (Bell chuckles) The legislature is in session typically, what, Monday through Thursday?
Bell: That’s right.
Leahy: You’ve finished your business for the week, so you’re back home. You’ve served in a stellar capacity in our state Legislature.
You’re only one of two blue-collar members of the Tennessee General Assembly as far as I know. The other guy has the same kind of business that you do. You’re in the pressure washing business, is that right?
Bell: That’s correct, Michael. But, Michael, as of last December, I have decided to give that up as well. I’m just getting a little too old for that kind of work. I’ve been doing that kind of work for 30 years, and so I’m going to be going into something new. But that’s kind of in the future. And I’ll see what comes up, but I’ll be going into something new next year.
Leahy: I think you certainly have quite a legacy as a legislator. And I have to tell you, I’m so impressed by this bill, SB2285, that you have sponsored. Did it make it past the Senate Judiciary Committee? Tell us what this bill is about and where it is.
Bell: Yes. It made it through the Government Operations Committee this week. It’ll be in the Senate Judiciary Committee next week. And I would expect you to make it past that committee and then to the floor.
Michael, this is an issue that was brought to my attention a couple of years ago. And, Michael, as you and I talked before, I’m not an attorney, and so I’m going to explain this in layman terms because that’s about the only way I know how to explain it.
Back in 1984, there was a U.S. Supreme Court case called Chevron versus the National Environmental Council. And in that case, where Chevron had a dispute with a and I think it was the EPA, the Environmental Protection Agency, the U.S. Supreme Court said that the courts, in other words, not just the U.S. Supreme Court, but all courts underneath them shall defer to an agency, whether it’s a federal agency or state agency, in the interpretation of their own rules.
In other words, Michael, if you and I have a dispute, you and I have a civil dispute, not a legal dispute, we go to court. The court looks at us equally before the eyes of the law and starts from that position before they make the decision of who is right and wrong.
In this case, the court said, before you ever even start the decision, the state or federal agency is going to have the scales of justice tipped in their favor, and we’re going to defer to them on the interpretation of their own rules before we even start deciding who is right and wrong.
Michael, in criminal law, we have something called the law of leniency which favors which kind of tips the scales in favor of the person accused of a crime. And why? Because the state has all the resources and all the money and all the manpower behind prosecuting an individual.
And so the law says the state is going to carry the burden of proving somebody’s guilty. In contract law and civil law, the person who or the entity, the side that drafts the contract is put at a disadvantage because they are the ones who drafted the contract.
So the person who didn’t draft the contract, I’ll put it another way. If there’s a mistake made, the favor goes toward the person who didn’t draft the contract. But in the administrative law case, in the Chevron case, not only is the state who has all the resources is on the side that favors given to by the decision, but they also are the ones drafting the language.
And so it’s just the opposite of the other two areas of law that favor more the citizen and more the person who wasn’t involved in crafting whatever contract or regulation you’re going by. In the Chevron case, that said, we’re going to give all the weight and all the advantage to the state and to the federal agency.
Leahy: And the agency is simply writing the rules and regulations as the bureaucrats see fit.
Bell: That’s right.
Leahy: Based upon this broad delivery of a directive from the legislature. Now, that was mostly at the federal level. Your bill would affect the state level, is that correct?
Bell: That’s correct. Our state has adopted that same rule, the same Chevron doctrine. And so my bill is going to tell our state courts you cannot tip the scales in favor of the state agency when deciding a dispute.
Leahy: Let me ask you this, Senator Bell. This is a very important, very significant bill. What prompted you to put this together?
Bell: A couple of years ago. This was brought to my attention. I actually met with some legislators from other states, and we started talking about issues. And this just came up. And I’ll tell you, Michael, the largest business association in the country, and I would say they’re phenomenally a conservative business association, which is the National Federation of Independent Businesses, NFIB.
Their main legislative push nationwide is to see Chevron overturned because it puts businesses at such a disadvantage when they have a dispute with the state.
Leahy: Is this similar legislation in other state legislatures, or is it just Tennessee?
Bell: No, it’s going on a number of their states. It’s actually been implemented in a couple of states. It’s been implemented in Oklahoma by voter referendum. They have a voter referendum process in Oklahoma that we don’t have. It’s been implemented in Wisconsin by their own court.
A court could do this on their own as well if they wanted to say we’re no longer going to apply the Chevron doctrine to our courts.
And in a couple of other states I think Florida, Georgia and two or three more, they have legislation introduced. I think if Tennessee passes it will be the first state to do it by legislation.
Leahy: This bill was placed under consideration in the Senate government operations committee on Wednesday. It passed out seven in favor. Two opposed. I’m guessing. Let me just guess. The two who were opposed were Democrats? Would that be right?
Bell: Ding, ding, ding, ding Michael.
Leahy: I’m shocked! I’m shocked!
Bell: I had some conversations with one of them prior to the meeting and she was concerned that you’re going back to the Chevron case that started this well, you’ve got this massive multinational corporation that’s got all the money and why shouldn’t the scales be tipped a little bit against it in a court case.
And I told her there’s a case right now, Buffington versus McDonough that is making its way to the appellate courts and it’s heading towards the Supreme Court and there’s a very good chance because both Justice Gorsuch and Justice Thomas have said we need to revisit Chevron.
It’s a bad decision so there’s a very good chance that Buffington versus McDonough could overturn Chevron at the federal level. But you know what that case is, Michael, that is a veteran, an Air Force veteran trying to get his VA benefits. And he keeps losing because of the Chevron deference office.
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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.
Photo “Senator Mike Bell” by Senator Mike Bell.
