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Law granting Lee ‘legislative’ EO powers unconstitutional, says attorney, state house member Griffey

Rep. Bruce Griffey is an attorney, a member of the executive branch, who holds a seat in the state general assembly, the legislative branch. He lives in Paris, which is west of Nashville. (Photo Bruce Griffey)

PARIS, Tenn. — Yesterday afternoon, I sent the attached letter to Tennessee Attorney General Herbert Slatery, questioning the legal authority of the governor to issue his series of Executive Orders in response to the COVID-19 virus and whether the governor’s orders infringed upon the rights of Tennesseans as guaranteed by the U.S. constitution and/or Tennessee constitution. 

By Rep. Bruce Griffey

When I ran for office, I ran on a platform of small government, limited government – a campaign platform I intend to honor. Moreover, when I took my oath of office, I swore to not only support the Tennessee constitution, but also to not consent to any act or thing that shall have a tendency to lessen or abridge the rights and privileges of the people of this state as declared by the constitution of this state. I intend to uphold my oath of office, and defend the constitutional rights of Tennesseans and protect them from government over-reach.

[Rep. Griffey is the fifth Tennessee attorney to condemn the illicit acts of Gov. Lee and complicit mayors such as Andy Berke and Jim Coppinger. The others are Joe Manuel in Chattanooga; DA Steve Crump in Bradley County; DA Craig Northcott of Coffee County; and Jeff Gobble of Greeneville. — DJT]

Regrettably, as of today, a number of businesses remain closed entirely or are only operating at partial capacity as a result of the governor’s executive orders. A number of my constituents and other Tennesseans remain unemployed. A large number of people can enter Walmart or Lowe’s or even a gym, but children are unable to regain normalcy without little league and youth sport teams being able to practice and play. Consequently, I requested a legal opinion from the attorney general as to the constitutionality of the governor’s executive orders.

As a Tennessee-licensed and practicing attorney for 30 years, serving as both an assistant attorney general and assistant district attorney general, I have researched this issue myself and question the legal authority for the governor to issue his executive orders purporting to close businesses, dictate Tennesseans’ healthcare decisions or prohibit people from exercising their right to gather.

Specifically, I question the constitutionality of the “Emergency Management Powers” statute under which the governor is purportedly acting -— specifically T.C.A. § 58-2-107. I believe the Tennessee General Assembly exceeded its constitutional authority 20 years ago when it passed this law to give the governor legislative power in emergency situations. 

State Rep. Bruce Griffey gives a speech at a Republican event in middle Tennessee. (Photo Bruce Griffey)

Article II of the Tennessee Constitution, which addresses the “distribution of powers” and divides the “powers of government” “into 3 distinct departments: legislative, executive, and judicial.” 

In essence, the Tennessee constitution explicitly provides that neither the executive branch (i.e. the governor) nor the courts can create law. Only the legislative branch can create law. Moreover, nothing in Article III of the Tennessee constitution, which covers the “executive department” and the governor’s powers, permit any legislative power to be given to the governor or permit the governor to exercise legislative power. Also, notably absent from Article III or any other provisions of the Tennessee constitution is any mention of the power of the Governor to issue “Executive Orders”.

Disseizing people of liberty

Moreover, I believe the executive orders themselves infringe upon the unalienable rights guaranteed to Tennesseans by both the U.S. constitution and the Tennessee constitution.

When the governor issues an executive order, prohibiting Tennesseans from walking the trail of a state park or mandating that Tennesseans stay at home, I submit the governor is “disseiz[ing]” Tennesseans of their constitutional “liberties.” When the governor issues an executive order allowing Wal-Marts and Lowes and other big-box corporate giants to remain wide open for business, but banning small business owners from opening the doors to their restaurant, their bar, their clothing boutique, their gym or their bowling alley, I submit such executive order is unconstitutional by “destroy[ing] or depriv[ing]” Tennesseans of their “property.” 

When the governor issues an executive order, forbidding a self-employed barber or beautician from exercising their trade and providing services upon which they rely to pay their mortgage, feed their family and make their car payment, i submit such executive order is unconstitutional in violation of Sections 8 and 21 of the Tennessee Constitution. When the governor issues an executive order, disallowing a little league team from playing baseball in an open, outdoor field or friends from gathering to watch the exchange of wedding vows and celebrate the sanctity of a marriage, I submit such executive order is unconstitutional inasmuch as it, among other things, violates Section 23 of the Tennessee constitution, which guarantees Tennesseans the constitutional “right, in a peaceable manner, to assemble together for their common good.” 

Stripping Tennesseans of their liberty

 When the governor issues an executive order overriding the informed decisions of trained and licensed doctors and stripping Tennesseans of their right to make their own healthcare decisions by banning elective medical procedures, I submit such executive order is unconstitutional inasmuch as it strips Tennesseans of their ‘liberty’ and ‘is inconsistent with the principles of free government’.

I posited the following 4 specific questions to AG Slatery, requesting a formal legal opinion:

1.  Whether the Tennessee General Assembly exceeded its constitutional authority when it passed T.C.A. § 58-2-107?;

2.  Whether the passage of T.C.A. § 58-2-107 amounted to an effort to amend the Tennessee constitution without following the proper procedure to do so by equipping the Governor with powers not otherwise delegated to him under the Tennessee constitution?;

3.  Whether the Governor exceeded his constitutional authority when he issued the above-described executive orders?; and

4.  Whether the above-described executive orders issued by the governor violated any constitutional rights as guaranteed by either the U.S. constitution or the Tennessee constitution to Tennesseans?

People required evaluate risks on own

I believe in supporting an individual’s constitutional right to liberty and right to exercise the freedom of choice. An individual should be able to decide for himself or herself whether to assume any potential health risk of attending a public gathering or eating at a particular restaurant or shopping a particular store or getting a hair cut or whether they want to remain home. 

By the same token, a business should be able to decide whether to open or shutter its doors, and a self-employed individual should be able to make his or her own decision about whether to offer services or not. People should have the freedom to make their own decisions and, with such freedom, should take responsibility for their decisions. The government should not be making healthcare decisions for its citizens and overtaking individual decision making and telling people whether they should stay home or go out and when, where and how they do it.

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