As Gov. Bill Lee attempted to respond to the coronavirus pandemic this spring — a virus whose full effects remained uncertain — some Republican legislators were outraged at his decision to issue executive orders reining in gatherings and certain types of commerce.
Despite Democrats blasting the governor for not acting quickly enough to shut down businesses and order people to stay home, some conservatives decried what they believed to be an overreach by the first-term governor.
On Thursday, lawmakers eager to find out whether Lee had acted outside his statutory authority heard from two experts — and the answers may not have satisfied those believing Lee went too far.
The governor has acted appropriately, the experts reported, although the legislature still has the ability to rein in his executive authority ahead of the next emergency.
“To me, it’s not really a question … of does Gov. Lee have the authority to do what he’s done,” said Alberto Gonzales, a former U.S. attorney general and current dean of the Belmont University College of Law. “Perhaps a better use, with all due respect, of the committee’s time is to look at what limitations should there be.”
Gonzales and William Koch, a former Tennessee Supreme Court justice and current dean of the Nashville School of Law, spoke to an ad hoc legislative committee on Thursday who asked questions about how much legal authority the governor has during an emergency.
Gonzales, who resigned as President George W. Bush’s attorney general amid controversy about the mass firing of U.S. attorneys and warrantless surveillance, does not have expertise in Tennessee law specifically.
Koch noted that “emergencies don’t create power.”
“They mark an occasion where power has to be exercised,” Koch said.
“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, he said.
The law in question, passed by the legislature in 2000, gives the Tennessee governor broad authority once a state of emergency or disaster declaration is in place.
Attorney general: Lee has top authority during pandemic
The ad hoc committee hearing was held despite Tennessee Attorney General Herbert Slatery issuing 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.
House Speaker Cameron Sexton, R-Crossville, and Lt. Gov. Randy McNally, R-Oak Ridge, appointed the ad hoc committee to “study the authority” of the executive and judicial branches during a state of emergency, according to a July letter to the chambers’ chief clerks.
Both experts who testified that lawmakers have the ability to put restrictions in place on the governor’s emergency authority, as the General Assembly did with the 2000 law.
Based on the legislation passed at the time, a Tennessee governor can’t impose any new restrictions or prohibitions on firearms or ammunition during a state of emergency.
“Your colleagues in 2000 understood how to define and limit the governor’s emergency powers,” Koch said.
Gonzales said he believes it is important to preserve the governor’s ability to “have flexibility to respond quickly” during emergencies, but to consider increasing reporting requirements afterward, such as how much money was spent during the disaster.
The only apparent overstepping that has taken place by the governor during the pandemic was an attempt to stop abortion clinics from operating, which was quickly reversed with a lawsuit.
In April, the 6th Circuit Court of Appeals ruled Lee could not use emergency powers to ban surgical abortions as part of a prohibition on elective medical procedures.
A number of groups throughout the pandemic called on Lee to use emergency powers, however, to accomplish various goals. While the Tennessee Coalition for Open Government and 55 other groups urged the governor to use emergency powers to protect public access to court proceedings after restrictions were implemented, health care advocacy organizations sounded the alarm for Lee to expand Medicaid by executive order during the pandemic.
Senate co-chair: ‘Err on the side of patience’ before stripping governor’s authority
Rep. Jason Zachary, R-Knoxville, is co-chairing the ad hoc committee with Sen. Ferrell Haile, R-Gallatin.
Zachary told the committee at the start of Thursday’s hearing that its purpose is not to review the decisions made by Lee or discuss whether he has the authority to issue a mask mandate — something Lee has refused to do — but rather to consider what authority the governor should have moving forward.
Haile urged his colleagues to “err on the side of patience and proceed with great caution” before deciding to change the law concerning the governor’s authority, given the pandemic is ongoing.
“The broad powers granted to the governor by the legislature have been in place for many decades, and no matter how you perceive these powers, they were put in place for times such as these,” Haile said. “It would be hasty and unwise to rush into a conclusion and change the law without giving thoughtful consideration to the bigger picture.”
Haile said that, had the legislature remained in session throughout the spring to “micromanage” Lee’s response rather than going on a two-month recess, more people could have contracted and spread the coronavirus from the General Assembly.
“With that said, it’s understandable that some of our constituents may be concerned about how the current governor is using these powers, his level of authority to use these powers, the constitutionality of some of his orders and no mechanism in statute to stop the continued use of these emergency powers,” Haile said.
But Rep. Dan Howell, R-Georgetown, was much more open with his criticism of Lee’s unfettered ability to call the shots during an emergency.
“What COVID-19 has done, I think, is uncover some unintended consequences in the original law, which has effectively removed the legislature from the process of decision-making,” Howell said. “When this act was revised or passed in 2000, I don’t imagine anyone in the executive branch or legislature or even judiciary branch envisioned a pandemic.”
Lang Wiseman, Gov. Bill Lee’s deputy governor and chief counsel, was originally scheduled to speak at the hearing Thursday but was unable to attend. Wiseman will speak at a subsequent hearing. Hearings are scheduled for Sept. 3 and Sept. 17.
The committee plans to provide recommendations to the 112th General Assembly, which will convene in January.
Reach Natalie Allison at firstname.lastname@example.org. Follow her on Twitter at @natalie_allison.
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