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.
AG says Tennessee could legalize sports gambling without constitutional change
Tennessee could enact sports betting without changes to the state constitution, according to an attorney general’s opinion obtained by the Daily Memphian’s Sam Stockard.
Attorney General Herbert Slatery’s opinion is dated Friday but has not yet been posted to his website. It states that the General Assembly “may legalize the contest solely through legislative action without a constitutional amendment” as long as the sport is based on skill and not predominantly on “chance.”
The Shelby County Commission on Monday voted to add sports betting on Beale Street to its legislative agenda for the year.
Republican Gov.-elect Bill Lee has said he doesn’t favor expanding gambling in the state.
Slatery’s opinion was written in response to a question by Sen. Brian Kelsey (R-Germantown), who has said he is interested in pursuing legislation on sports gambling next session. Rep. Rick Staples (D-Knoxville) has already filed a bill seeking to allow sports betting.
Slatery’s opinion says betting would involve only “actual sporting events,” and not fantasy sports or amusement devices.
Some political and policy commentary reading suggestions for Tennessee political junkies, 5/20/2018
Whiskey River take the Legislature’s mind?
In a rambling article on the political influence of state’s most famous whiskey, Sam Stockard mixes Jack Daniels with PAC money, lobbyists, legislators, rock ‘n’ roll, the Tennessee Constitution, legislators and the attorney general under the headline, “Jack Daniels may no longer be a sacred cow.” After reading the intoxicating tale, the headline may not ring true, but perhaps there is solace in the concluding line: Just enjoy the whiskey and forget all your woes. (HERE)
In GOP guber primary, overblown emphasis on illegal immigration?
Citing TV commercials by Diane Black and Randy Boyd, columnist Frank Cagle throws in a bit of sarcasm (evidently, Gov. Bill Haslam and the Republican legislature have allowed the state to be overrun) in suggesting gubernatorial candidate passion for attacking illegal immigration is overblown to the detriment of discussing other issues actually related to state, rather than federal, government. Health care, for example. The reason, he says, is pandering to right-wing talk radio and popular websites devoted to crusading against illegal immigrants. The article is HERE. The last line:
There was a time when John Seigenthaler and the Nashville Tennessean set the campaign agenda and influenced candidate positions on issues. That role is now being filled by Steve Gill and the Tennessee Star website.
Columnist in chemotherapy backs medical marijuana bill
Frank Cagle, currently undergoing chemotherapy treatment for cancer, declares his support for legislation to legalize medical cannabis oil in his current News Sentinel column. It begins as follows:
If you lose 40 pounds and the sight and smell of food make you wretch, you are tempted to try most anything for relief. If you ask around, you can find cannabis oil here in Tennessee. But it has drawbacks.
— You don’t know where it came from.
— You don’t know what the dosage is.
Suggested TN political junkie reading: From a hallelujah for Haslam to John Wilder’s ghost
A listing of some recent writing on Tennessee politics and state government matters (delving into state history in a couple of cases; a ghost in another) that didn’t get mentioned in daily blogging but are well worth reading – at least in the opinion of one Tennessee political junkie.
GOP guber candidate White: Haslam is a RINO
Robert Houk’s Sunday column follows up on a speech to the Washington County Republican Women by Kay White, who has gotten far less media attention so far than the five other GOP candidates for governor. She denounced Gov. Bill Haslam as a RINO.
A couple of columns on the governor’s race: Black bashed, gimmickry noted
U.S. Rep. Diane Black’s recent criticism of weak kneed Republicans in Nashville, delivered at a gubernatorial campaign forum, didn’t resonate with Frank Cagle. Here are the first and last paragraphs of his column on the subject:
Congresswoman Diane Black has a lot of gall, I’ll give her that. She has come down from her leadership position in the dysfunctional U.S. House and criticized the “meek Republicans” in Nashville that run state government.
…Instead of praising the progress that has been made by her Republican colleagues and offering to build on it, Black has decided to appeal to the radical fringe around Nashville. If she can’t distinguish the difference in our state’s progress, as opposed to what she has been doing, she is too clueless to be governor.
On guber candidate theatrics
Robert Houk observes that candidate “gimmickry” of the past – Lamar Alexander walking across the state in 1978, Fred Thompson’s 1994 tour of Tennessee in a red pickup truck – is being echoed this year in “similar stunts” by Republican gubernatorial candidates Randy Boyd and Bill Lee, HERE. (Boyd is running across the state; Lee is touring Tennessee in a tractor.)
Note: It’s not a column, but The Tennessean has a report on Democrat Craig Fitzhugh venturing into solidly-Republican Williamson County that begins with a depiction of the House minority leader having “a Southern drawl and plucky spirit,” HERE. (Southern drawl?? Well, maybe compared to Karl Dean… but certainly not compared to the late Sen. Douglas Henry, D-Nashville.)
Councilman calls for special legislative session on Confederate monuments
In a Commercial Appeal op-ed piece, Memphis City Councilman Bill Morrison urges Gov. Bill Haslam to promptly call a special session of the General Assembly to repeal Tennessee Heritage Protection Act of 2016.
That’s the law that requires two-thirds of the 29 members of the Tennessee Historical Commission to approve any changes in monuments to historical figures, no matter where they are or what they stand for. Five members live in Shelby County.
The law.. was co-sponsored by some of our own, including state Sen. Mark Norris, who is President Trump’s nominee for a federal judgeship position in Tennessee. Another co-sponsor was state Sen. Mae Beavers, a Republican candidate for governor.
…The law is wrong and must be repealed. It doesn’t protect our heritage. It only serves to protect memories of white supremacy and shrines for modern-day followers.
Sen. Sara Kyle, D-Memphis, has introduced a bill that would exempt Shelby County from the law in question (SB1467) which, of course, will not be up for consideration – barring a special session – until the legislature returns to Nashville in January, 2018. (It is suggested that Haslam calling a special session on Confederate monuments is about as like as the U.S. House approving Rep. Steve Coehn’s proposed impeachment of Donald Trump.)
Note: The media generally is awash this weekend with opinion pieces on the fallout from Charlottesville, Va., troubles and efforts to remove Confederate memorials from public property display. Here are snippets from a couple of Tennesseans at opposite ends of the state:
From Memphis’ Otis Sanford: Above all, it is now time to completely ignore the sitting president of the United States.
From Knoxville’s Greg Johnson: Both fringes have lost their minds.
Some suggested TN political junkie weekend reading
The Douglas Henry State Museum Commission’s efforts to block Victor Ashe, or any other board member, from making negative comments about museum operations have generated a round of negative comments about museum operations. Here’s a sampler, along with other articles not involving Ashe or the museum appearing around the state during the past few days:
Duncan bashes League of Women Voters as ‘arm of the Democratic party’
Excerpt from an op-ed piece by Republican U.S. Rep. John J. “Jimmy” Duncan Jr. appearing in the News-Sentinel:
Once again the League of Women Voters has acted as an arm of the Democratic Party….They have been working with a nationwide group called Indivisible, which according to NPR, was formed by former Democratic staffers.
So I was not surprised that I got a request from our local League of Women Voters wanting me to hold a town hall meeting even though two such events have already been held here.
They want me to help draw a crowd so that liberals can come and spout off partisan Democratic talking points and other left-wing views.
…The group will occasionally parade out a few members who claim to be Republicans, but who really oppose almost everything Republicans stand for, or perhaps a few conservatives who just do not realize how liberal and partisan the League is.
The National and local League organizations have strongly supported Obamacare, higher taxes, job-killing environmental regulations, and more government takeover of private property, making it much more expensive for young couples to buy homes. The League is strongly pro-abortion.
