local governments

AG: Governor’s emergency powers preempt locals

State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

The governor’s emergency powers trump the authority of local health departments to issue restrictions in response to the coronavirus pandemic, according to a rare legal opinion issued by state Attorney General Herbert Slatery.

The opinion was requested by Senate Speaker Randy McNally (R-Oak Ridge) and House Speaker Cameron Sexton (R-Crossville)

It’s just the seventh legal opinion issued by Slatery’s office this year. Here it is:

Question

Because of the COVID-19 health crisis, the Governor has exercised his authority to declare a state of emergency in Tennessee and to issue a series of executive orders governing the State’s emergency response to the COVID-19 pandemic. Do these executive orders serve as the exclusive regulation of the State’s emergency management in response to the pandemic, and to what extent, if any, may local governmental entities take actions or issue orders that conflict with the Governor’s executive orders?

OPINION

The General Assembly has vested the Governor with exclusive responsibility and authority to assume control over all aspects of the State’s response to an emergency such as the COVID-19 pandemic. Tenn. Code Ann. § 58-2-107(a)(1). Because the executive orders that the Governor issues pursuant to that authority have the force and effect of law, Tenn. Code Ann. § 58-2- 107(a)(2), the Governor’s directives in response to an emergency supersede and preempt any action taken by political subdivisions of the State.

Absent an express delegation of power by the Governor, local governmental entities may not take actions that are either more restrictive or less restrictive with respect to the subjects addressed in the Governor’s executive orders governing the State’s emergency response to COVID-19. Such action would be at cross purposes with the Governor’s orders, which are the law of the State, and would constitute an impermissible legal conflict.

Just as the Governor may exercise his authority under Tenn. Code Ann. § 58-2-107(a)(1) to delegate to a local governmental entity or to the local health department “such powers as the governor may deem prudent,” the Governor may exercise his emergency powers to expressly authorize, or recognize the authority of, county health departments to take action that may otherwise be inconsistent with his executive orders. Such a delegation of authority may be revoked or modified at any time, § 58-2-107(a)(2), and, absent an express delegation or authorization by the Governor, the local health department or other local governmental entity may not take any action inconsistent with the Governor’s executive orders.

ANALYSIS

Because of the COVID-19 health crisis, the Governor has exercised his authority to declare a state of emergency in Tennessee and to issue a series of executive orders governing the State’s emergency response to the COVID-19 pandemic.[1] The executive orders are all aimed at diminishing the spread of COVID-19 and ensuring that the State maintains the resources needed to protect the health and well-being of its citizens. Among other provisions, the orders currently require all persons in Tennessee to stay at home unless engaging in essential activity or essential services, and they place restrictions on social gatherings and business operations. Some local governmental entities have issued orders that are either more restrictive or less restrictive than the Governor’s executive orders.

The Governor’s power to issue these executive orders is grounded in the broad grant of authority—a responsibility and authority that the General Assembly has vested solely in the office of the governor—to assume control over all aspects of the State’s response to an emergency such as the COVID-19 pandemic:

The governor is responsible for addressing the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the governor . . . may assume direct operational control over all or any part of the emergency management functions within this state The governor is authorized to delegate such powers as the governor may deem prudent.

Tenn. Code Ann. § 58-2-107(a)(1) (emphasis added). To exercise this exclusive authority “the governor may issue executive orders, proclamations, and rules and may amend or rescind them. Such executive orders, proclamations, and rules have the force and effect of law.Id. § 58-2- 107(a)(2)(emphasis added). See also Tenn. Code Ann. § 58-2-107(b)(1)(A) (authorizing issuance of executive orders to implement governor’s authority).

An “emergency” is defined expressly to include “disease outbreaks and epidemics.” Tenn. Code Ann. § 58-2-101(7). “Emergency management” is defined broadly to cover all stages of dealing with an emergency; it “means the preparation for, the mitigation of, the response to, and the recovery from emergencies and disasters.” Tenn. Code Ann. § 58-2-101(8).[2]

To effectuate emergency management, the General Assembly has given the Governor a broad range of powers. The Governor has the power, among others, to: suspend laws prescribing the conduct of state business; utilize all available resources of the state government and of each political subdivision; commandeer private property; direct and compel an evacuation; control ingress and egress to and from an emergency area; control the movement of persons; control the occupancy of premises; make provisions for temporary emergency housing; and take measures concerning the conduct of civilians. Tenn. Code Ann. § 58-2-107(e).

By giving the Governor “direct operational control over all or any part of the emergency management functions within this state,” the General Assembly has vested in the Governor the exclusive authority to wield these powers to control and limit the acts of political subdivisions in an emergency. Further, when the Governor invokes his emergency management powers, all the “officers and agencies of the State and political subdivisions . . . shall cooperate with and extend their services and facilities to the Tennessee Emergency Management Agency,[3] as it may require.” Tenn. Code Ann. § 58-2-107(h) (emphasis added). In short, the General Assembly clearly intended the Governor’s emergency management powers to be exclusive and to override any action taken by political subdivisions of the State.

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