Lee declines to sign nullification resolution passed during special session

A statue of President Andrew Jackson is seen in front of the state Capitol in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)

Gov. Bill Lee has declined to sign a resolution passed during a recent special session touting the state’s purported right to pass laws to nullify federal COVID-19 vaccination and mask requirements.

The Republican governor does not appear to have transmitted a statement to lawmakers about why he is allowing the resolution to go into effect without his signature.

The Senate version passed 24-6, while the House vote was 64-17.

Rep. John Ragan (R-Oak Ridge) carried the measure on behalf of House Speaker Cameron Sexton (R-Crossville).

“The nullification theory was first broached in 1832 when Tennessee’s own Andrew Jackson was president,” Ragan said in floor comments. “The state of South Carolina began it, and President Jackson threatened to invade with federal troops to settle the issue. However, the federal government ultimately backed down.”

Ragan’s statement drew a retort from Rep. Michael Curcio (R-Dickson).

“I wanted to make sure the record was clear: the federal government didn’t back down, South Carolina quit,” said Curcio, who voted against the resolution. “But they continued in their behavior until eventually Fort Sumter was fired on, creating a tragedy for this country. I want to remind everybody that emulating such behavior is very, very serious.”

The full language of the resolution follows.

WHEREAS, on September 9, 2021, the President of the United States announced an executive order that mandates COVID-19 vaccinations for employees of federal contractors and subcontractors; and

WHEREAS, President Biden also announced a forthcoming Emergency Temporary Standard (ETS) to be issued by the Occupational Safety and Health Administration (OSHA) regarding COVID-19 vaccinations or routine testing for employers with more than 100 employees; and

WHEREAS, part of the President’s COVID-19 Action Plan includes having the Centers for Medicare & Medicaid Services (CMS) require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies; and

WHEREAS, the new CMS requirements will be in addition to the vaccination requirement for nursing facilities previously announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff,

individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care; and

WHEREAS, federalism is described and analyzed in Bond v. United States, 564 U.S. 211 (2011), in which the United States Supreme Court declared that the federal system rests on the insight that “freedom is enhanced by the creation of two governments, not one”; and

WHEREAS, the Court further stated that this freedom is enhanced “first by protecting the integrity of the [two] governments themselves, and second by protecting the people, from whom all governmental powers are derived”; and

WHEREAS, federalism serves “to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-a-vis one another . . . [and] preserves the integrity, dignity, and residual sovereignty of the States”; and

WHEREAS, this federal balance “ensure[s] that States function as political entities in their own right”; and

WHEREAS, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake”; and

WHEREAS, the limitations prescribed under federalism are not “a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States”; and

WHEREAS, the United States Supreme Court in National Federation of Independent Business (NFIB) v. Sebelius, 567 U.S. 519 (2012), further analyzed federalism and the Tenth Amendment to the United States Constitution; and

WHEREAS, the Court acknowledged that a government’s “police power” is the general power of governing, possessed by the states but not by the federal government as the federal government only possesses enumerated powers listed in the United States Constitution; and

WHEREAS, the Constitution’s express conferral of some powers for the federal government makes clear that it does not grant others, and the federal government can exercise only the powers granted to it; and

WHEREAS, the independent power of the states serves as a check on the power of the federal government; by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power; and

WHEREAS, the federal government may create incentives for states to act in accordance with federal policies, but when pressure turns into compulsion, it runs contrary to federalism, and the Constitution does not give federal government the authority to require the states to regulate, regardless of whether the federal government directly commands a state to regulate or indirectly coerces a state to adopt a federal regulatory system as its own; and

WHEREAS, assertions of federal authority must be grounded in some constitutional grant of power, with the most common basis for federal intervention in private affairs being the Constitution’s Commerce Clause, which empowers Congress “to regulate commerce . . . among the several states”; and

WHEREAS, in NFIB v. Sebelius, the Supreme Court held that the Commerce Clause cannot be used to compel individuals to engage in activity, even when such activity has an impact on interstate commerce; and

WHEREAS, while the compelled activity in NFIB was purchasing health insurance, the logic applies with equal force to a federal mandate to get an injection or submit to a weekly test, as foreshadowed by Chief Justice John Roberts, writing for the majority, when he rejected an interpretation of the Commerce Clause that would allow, for example, Congress to pass a law requiring individuals to buy vegetables to promote healthier eating habits; and

WHEREAS, reliance by the federal government on OSHA to implement a federal mandate represents an egregious overstepping of the authority that is granted to OSHA under the 1970 Occupational Safety and Health Act, as nothing in that law even hints at the sweeping powers the President has claimed; and

WHEREAS, the Occupation Safety and Health Act’s reference to “substances or agents” strongly suggests that OSHA’s ETS power is meant to target workplace hazards like dangerous chemicals and not naturally occurring hazards like viruses; and

WHEREAS, decisions regarding any vaccine mandate properly belong to the states, not the federal government, and United States Supreme Court precedents on the validity of vaccine mandates under Jacobson v. Massachusetts, 197 U.S. 11 (1905) and Zucht v. King, 260 U.S. 174 (1922), involve state, not federal, laws, and are part of the broad “police powers” enjoyed by the states; and

WHEREAS, the announced executive orders and COVID-19 Action Plan are attempts by the federal government to coerce the State of Tennessee and its citizens in violation of both the United States Constitution and the Tennessee Constitution; and

WHEREAS, each member of the General Assembly has taken an oath to uphold the Constitution of Tennessee and the Constitution of the United States; and

WHEREAS, if the federal government intends to overreach its authority to the point that it assumes the traditional constitutional role of a state legislative body, it is only fitting and proper that the very existence, as well as the depth and breadth, of this federal power be condemned and challenged not just in a court of law, but also through actions of the General Assembly to nullify such federal overreach; now, therefore,

BE IT RESOLVED BY THE SENATE OF THE ONE HUNDRED TWELFTH GENERAL ASSEMBLY OF THE STATE OF TENNESSEE, THE HOUSE OF REPRESENTATIVES CONCURRING, that the State of Tennessee condemns any attempt by the federal government to penalize citizens of this State in an effort to enforce an unconstitutional mandate regarding COVID-19 vaccinations or other COVID-related restrictions and requirements.

BE IT FURTHER RESOLVED that it is the right of the Tennessee General Assembly to enact such legislation as it deems necessary to nullify actions taken by the federal government regarding COVID-19 when those actions violate the United States Constitution.

BE IT FURTHER RESOLVED that the Tennessee General Assembly urges the Attorney General and Reporter of the State of Tennessee to initiate or intervene in one or more civil actions on behalf of the State of Tennessee or, in the alternative, seek appropriate relief in a federal court of competent jurisdiction regarding COVID-19 mandates issued by the federal government, and any actions taken by the federal government, including the President of the United States, the head of any department or agency, or any other employee of the executive branch of the federal government, in violation of federal law or as prohibited by the Tenth Amendment to the United States Constitution, or any other statutory or constitutional provisions of the United States or the State of Tennessee, with respect to the implementation or enforcement in this State of any provision of the federal government’s mandate that requires citizens of this State to either receive a COVID-19 vaccination or submit to routine testing.

BE IT FURTHER RESOLVED, that a certified copy of this resolution be transmitted to the Attorney General and Reporter of Tennessee.