Days after legislators gathered to hear testimony on whether Gov. Bill Lee overstepped his authority by issuing various pandemic executive orders, a conservative group has sued him for doing so.
While some conservatives, including lawmakers, balked at the governor’s efforts this year to slow the spread of the coronavirus, Lee has simultaneously come under fire from liberals for not doing enough to address the virus.
At the heart of both Thursday’s legislative hearing — the first of a series of ad hoc committee meetings to study Lee’s emergency authority — and Monday’s lawsuit is the state’s Emergency Management Powers Act.
That law, passed by the Tennessee legislature in 2000, is the vehicle through which Lee this spring and summer signed executive orders enforceable by civil and criminal penalties, such as allowing county mayors to issue mask mandates and requiring that restaurants and bars temporarily close for dine-in service.
It gives the Tennessee governor broad authority once a state of emergency or disaster declaration is in place.
Gary Humble, a conservative activist in Williamson County who has recently been critical of Lee, is alleging in a lawsuit filed Monday in Davidson County Chancery Court that the statute Lee used to issue the orders is unconstitutional. Humble runs Tennessee Stands, a group that gathered 1,000 online petition signatures over the weekend calling on Lee and county mayors to stop issuing coronavirus-related executive orders.
Rodney H. Lunn Jr. is also listed as a plaintiff on the lawsuit, while a separate group of plaintiffs — the operators of Nashville “transpotainment” businesses who sued the city earlier this month — have amended their complaint to incorporate the same argument about the governor’s emergency authority being unconstitutional.
Nashville attorney Gary Blackburn is representing both groups. Their argument: the Tennessee constitution does not give the governor the power to create laws, which the emergency powers portion of state code allows Lee to do. That particular statute is therefore unconstitutional, the plaintiffs say.
“You cannot give unfettered authority to any governmental entity without danger of despotism,” said Blackburn, a self-described “progressive Democrat” who has been active in both the state and national party, but who maintains that some of Lee’s actions to mitigate the spread of coronavirus are unconstitutional.
Lee has declined to impose a statewide mask mandate and in his response has largely erred on the side of urging compliance with directives, rather than ordering it, though most businesses voluntarily complied with his orders to limit operations.
Blackburn noted there is nothing to stop a governor from declaring an emergency and deciding to keep extending it by 60-day intervals, under the emergency powers law, for the rest of his or her term.
“We have a governor now who is an honest, decent man,” Blackburn said. “But we have not always been so fortunate, and we will not always be so fortunate in the future. Because we all exist and these laws exist within the human condition.”
He pointed to former Gov. Ray Blanton, whose term in the 1970s was mired in scandal, including the selling of pardons. Blanton later served time in federal prison on fraud, conspiracy, and extortion charges for in a liquor license sales scheme.
“I think (Lee) meant well and I think there may be some good that would come from his actions, but that’s not the point,” Blackburn said. “There are other ways to do it.”
For example, he said if a business operating during the pandemic had been posing a danger to public health, such as a packed bar serving at full capacity, a city could go to court to declare it a nuisance and the business owner have a hearing.
“To close a man or woman’s business down just because you say so is tyrannical,” Blackburn said. “This is not a political thing for me. Quite the contrary. This is a matter of principle.”
Lee’s office did not immediately respond to a request for comment Tuesday.
Blackburn also argued that people receiving misdemeanor citations over violations of executive orders aren’t being charged with a clear offense found in state law.
Lee did not order troopers or other state law enforcement to issue citations for gatherings or businesses operating in violation of the orders.
Rather, in an April 1 letter, he clarified to sheriffs, police chiefs and district attorneys that they had “authority to take reasonable steps” to ensure compliance with his takeout-only restaurant order. He urged officers to focus on issuing warnings, using enforcement as a “last and final option.”
Law experts, attorney general have said Lee had authority to issue pandemic orders
On Thursday, a group of legislators returned to Nashville to “study the authority” of the executive and judicial branches during a state of emergency, according to a letter from the House and Senate speakers announcing the formation of the ad hoc committee.
The lawmakers from both chambers heard testimony from William Koch, a former Tennessee Supreme Court justice, and Alberto Gonzales, a former U.S. attorney general. The men agreed that Lee did not overstep his authority by issuing the orders, but noted that the legislature could always rein in that power by changing the law.
“His executive orders are entirely consistent with the inherent power in his office and with the power you granted him” in Tennessee’s Emergency Powers Act, Koch said.
Tennessee Attorney General Herbert Slatery issued an opinion in late April, at the request of the House and Senate speakers, affirming Lee’s executive authority during an emergency.
“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,” Slatery wrote at the time in response to a question about Lee and local mayors’ authority during the pandemic.
Reach Natalie Allison at firstname.lastname@example.org. Follow her on Twitter at @natalie_allison.
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