A Tennessee senator plans to limit the governor’s authority during state emergencies after seeking an attorney general’s opinion on the separation of powers.
Republican Senator Mark Pody of Lebanon, whose district includes an eastern part of Davidson County, told Tennessee Lookout he was concerned about the possibility that the governor could override the legislature in the wake of the COVID-19 pandemic with orders that would have the force of law and are based on a state of emergency measure passed in 2000.
“I just felt that the governor should not have the power to override our constitutional rights,” Pody said.
During the pandemic, lawmakers challenged the governor’s legislative power and later partially limited that power, including passing a law limiting the duration of emergency orders to 45 days instead of 60.
Another bill prohibited the state and governor from mandating COVID-19 vaccinations, even though Lee only encouraged people to get vaccinated during the pandemic. They also curtailed the ability of independent health departments in the state’s six largest counties to issue their own regulations, primarily related to mask mandates and vaccinations.
Pody noted that the House’s 2000 bill “carved out” the Second Amendment, which deals with gun control, but not the First Amendment, which deals with freedom of speech and assembly, adding, “That was a big concern for me.”
Numerous churches protested against the social distancing rules imposed by the governor during the pandemic, saying they violated their right to gather for worship.
Attorney General Jonathan Skrmetti supports Governor Bill Lee: In an opinion, Skrmetti rules that the legislature can delegate power to the governor in state emergencies as long as “is executive, not legislative in nature.”
The opinion, which Pody received from Attorney General Jonathan Skrmetti on August 13, states that under the state’s separation of powers doctrine, the General Assembly cannot delegate its law-making authority except in two “narrow” cases that appear to involve state emergencies and the legislature. This was in response to Pody’s question about whether the legislature has the authority to delegate its law-making authority to another ministry because the Constitution prohibits the executive and judicial branches from exercising law-making authority.
When asked whether the Legislature can delegate the authority to make rules and regulations with the “force of law,” the Attorney General’s opinion states that while the Legislature “may not delegate its law-making authority to an executive agency, it may ‘delegate the authority to carry out the policy expressed in specific laws,’ that is, the executive authority.” The opinion notes that the authority includes the authority to make rules and regulations that “have the force of law within the scope of an agency’s operations.”
The opinion goes on to say that the Legislature can grant the governor emergency powers as long as they are “executive and not legislative in nature.” It goes on to say, “Moreover, the Governor’s constitutionally granted executive authority may inherently include emergency powers; if this is correct, it would not violate the separation of powers doctrine…”
When asked about the matter on Wednesday, Governor Bill Lee said, “The law is pretty clear about where that separation of powers applies and what those powers actually are, and I don’t expect that to change.”
Pody admitted he liked Lee’s handling of the situation and declined to criticize his actions. However, Pody said he disagreed with the decision to close small businesses deemed “non-essential,” such as home improvement stores, while allowing big-box stores like Home Depot and Lowe’s to continue operating.
In the event of another emergency, such as a natural disaster, he wants to ensure that the declaration of a state of emergency does not override the constitutional authority of the legislature, Pody said.
However, the Attorney General’s opinion appears to support Lee’s claim that the powers are clear.
In March 2020, the governor declared a state of emergency, allowing him to suspend certain laws, rules and regulations to stop the spread of COVID-19. He then issued about 35 executive orders designed to prevent people from gathering in large groups, including allowing local authorities to meet online.
In response to directives from former President Donald Trump, the governor issued an order banning gatherings of 10 or more people, eating and drinking at restaurants and bars, going to gyms and fitness centers, visiting nursing and retirement homes, and encouraging people to use electronic communications. In addition, older people with weakened immune systems were protected. Churches were affected by this order and faced opposition from groups who believed the government should not control religious activities.
An overview of all of Bill Lee’s executive orders from the Covid era
The order did not require quarantine or visits to grocery stores and gas stations, but said people should work from home if possible. It also set rules for taking alcoholic beverages to the home, as most restaurants were prohibited from inviting customers inside for food and drinks.
Another order restricted non-urgent medical treatment and affected the transport of food and disinfectants.
The governor faced further resistance when he ordered the closure of businesses with “close physical contact” such as hair salons and nightclubs, concert halls, race tracks, indoor children’s playgrounds and adult entertainment venues.
An April 2 order urged people to stay home except when performing “essential activities or essential services.”
One order was intended to put an end to price gouging, others were intended to allow retired health workers to return to work with the renewal of their state-issued licenses. One order suspended inspections of pain clinics, health facilities and pharmaceutical facilities.
The governor issued separate orders on June 1, 2020, to end the unrest in downtown Nashville and then in Memphis, including mobilizing the National Guard.
A July 6 executive order required people to wear cloth masks to prevent the spread of COVID-19 and gave local governments the ability to create their own mask mandates. Health departments in the state’s six largest counties, which operate independently, were exempt. This led to confrontations in Metro Nashville, where mask mandates were implemented, angering downtown business owners.
School districts were also asked to implement face covering policies as students prepared to return to school in August of this year. Most schools closed toward the end of the 2019-20 school year to stop the spread of COVID-19.
The ban on spectators attending school sporting events, the limitation of social gatherings and the recommendation for places of worship to avoid large gatherings of people remained in place until December 2020.
In August 2021, the governor issued a limited state of emergency order, after which restrictions were eventually relaxed and lifted.
