Gov. Bill Lee’s series of executive orders in combating the CV-19 flu virus is a colossal mistake on several fronts, an experiment in unbounded executive government that will be used against the people of Tennessee when future “threats” appear.
The medical panic is being closely watched to see how long the people cooperate, and how far state actors can go in bullying and intimidating them. Tennessee is a near-statewide “requirement” for each citizen in public to wear a chin diaper, aka a “mask.”
The governor and the state’s many mayors have ordered the state into a depression, inconvenienced thousands of small businesses by ordering them closed, put hundreds of thousands on the state and federal dole, and imposed rolling default across the economy. Gov. Lee has ignored black-letter law of the quarantine statute because evoking that law would have bound him and limited him.
Instead, he evokes a generalized and sweeping emergency power claiming authority over all citizens without having to regard the damage he does to them culturally, educationally, financially and legally, and without having to trouble himself with the due process rights of the individual.
The quarantine law, a mere 159 words at Tenn. Code Ann. § 68-1-201. Power to quarantine, requires the health commissioner to act to stop spread of a disease “with the least inconvenience to commerce and travel, prevent the spread of the disease.”
Gov. Lee does not evoke the authority in this law, because that would imply he is bound by its limits.
A close reading of the emergency law indicates the governor’s regime of abuse can be overturned in court. It can be overturned by an arrested or cited party in a criminal matter, or by petition for summary judgment in chancery court.
Among the grounds: A misreading of the authorizing law.
Power over people, or over state?
Generally in American jurisprudence, the state has no authority over the private individual except for two conditions. The person is accused of a crime — he is subject to arrest and judicial process, his rights protected by due process. No. 2, the person is exercising a state privilege — he is subject to a state regulatory body, whether it be a professional occupation, a line of business such as telecom, banking, transportation or insurance.
By what conception does the governor and his agents have power to say anything or give any order to a private noncriminal and nonprivileged member of the public or citizenry?
What follows is the very slight legislative language on which Gov. Lee’s absolute authoritarianism rests.
(a)(1) 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, or, in the governor’s absence, the governor’s successor as provided by law, may assume direct operational control over all or any part of the emergency management functions within this state, and such person has the power through proper process of law to carry out this chapter. The governor is authorized to delegate such powers as the governor may deem prudent.
(2) Pursuant to the authority vested in the governor under subdivision (a) (1), 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. Tenn. Code Ann. § 58-2-107
The governor may “direct operational control” over any part of the “emergency management functions” — and these functions are “within this state.”
Emergency management functions refers to the operation of governmental divisions, offices, units, branches, employees, and directors. In emergency, he can suspend all routine operations. The authority is upon the governor and his agents in all the agencies. When an emergency comes, he obtains top-down control of “emergency management functions” — where?
The where is important. What does “within this state” mean? Is it a universal concept, or particular, narrow concept?
Gov. Lee takes the broad meaning. He takes it to mean within the geographical boundaries of the state of Tennessee, a 42,181 square mile area of land and the 6.829 million people.
However, for him to have sweeping executive powers over the people of Tennessee would require an amendment to the constitution to allow the governor to ignore their God-given rights on certain conditions. In the rush to deal with the virus, that amendment was not passed by the general assembly, much less proposed.
The reference to “within this state” refers narrowly to the corporation, the State of Tennessee, not to the general population, the citizenry.
We arrive at this reading from the fact that the Tennessee constitution has a bill of rights and also an explicit remonstrance in article 11, section 16, against ignoring any provision of the state’s supreme charter. ‡
The word state refers to State of Tennessee, the government in its three branches, not the people. When the law says the provisions intend “to preserve the lives and property of the people of the state,” it does not imply with the possessory word “of” that the people belong to the state, or are state property. It implies the people “in” the state. The constitution refers to them as the “free people.” No matter how severe or compelling the state necessity, nothing in the people’s grant gives public servants authority or power to overturn their lives and bring them to mass ruin, no matter how excellent the compulsion or seeming duty.
The phrase that excites the govenor is in the second paragraph, “Such executive orders, proclamations, and rules have the force and effect of law.”
The broad meaning of “state” tells Gov. Lee that his rules are law — just like a law passed by the general assembly.
But the passage doesn’t say that.
It says the executive orders, acting upon the executive branch, have the force of law upon the executive branch actors. In other words, under an emergency, the EO controls over the law — it supersedes the law.
But, again, the subject of the EO and the emergency law itself is not the people, but the state. The people remain free and at liberty, but the administration hops and jumps to the new tune of the governor’s EO commands.
The governor in executive orders doesn’t write law for the people. He shakes up the law for the agencies under his legal and constitutional authority.
Power to suspend law, & to make it?
The governor has power to impose his will and his emergency protocols on any function of government. He can freeze and temporarily nullify laws directed at his departments. He may
[s]uspend any law, order, rule or regulation prescribing the procedures for conduct of state business or the orders or rules or regulations of any state agency, if strict compliance with any such law, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency; Tenn. Code Ann. § 58-2-107(e)(1)
The power described here is NEGATIVE. But does he have positive legislative power? Might he create law — might he legislate?
A brief background. Executive orders are rules for the executive agencies that serve the governor. EO No. 3 of January 2019 orders that agencies be open and accountable. EO No. 4 focuses on employment practices within the executive branch, adding, “This executive order is intended only to improve the internal management of the executive branch of the State of Tennessee and does not create any right to administrative or judicial review, or any other right or benefit, substantive or procedural, enforceable at law or equity by a party against the State of Tennessee, its agencies or instrumentalities, its officers or employees, or any other person.”
In March another executive order sprung forth, No. 6, creating a criminal justice task force to study his department of corrections and imprisonment. Another, EO No. 9, in August 2019, regarding hurricane Dorian, suspends weight rules for trucks (commercial vehicles) carrying relief supplies.
EOs apply to the executive branch of government and all its subjects — jailers, truckers, regulators and others.
Governor becomes super legislator
The CV-19 panic has prompted Gov. Lee, with staff help, to convert himself into the supreme legislator and lawgiver, with myriad legislative documents or bills presented as EOs, not needing any legislative ratification. He claims constitutional authorization for his shutting down of church services, commerce and much of public life of millions of citizens. For example.
NOW THEREFORE, I, Bill Lee, Governor of the State of Tennessee, by virtue of the power and authority vested in me by the Tennessee Constitution and other applicable law *** do hereby order the following statewide:
1. In accordance with the President’s Coronavirus Guidelines for America and the guidance from the CDC, to limit the spread of COVID-19 so that normal life and activities may resume as soon as possible:
a. Persons in the State of Tennessee shall not participate in social gatherings often (10) or more people.
b. Persons in the State of Tennessee shall not eat or drink onsite at restaurants, bars, or other similar food or drink establishments, and 2 shall not visit gyms or fitness/exercise centers or substantially similar facilities. (Executive Order no. 17. https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee17.pdf)
Persons “IN THE STATE OF TENNESSEE” shall not participate in gatherings of 10 or more people. Which people is he talking about? Those persons in state government. That limited number of people, it would appear, that 40,000 people on the state payroll is the party or group liable for performance under this order — and others like it.
If Gov. Lee intends this to be understood as targeting everyone in the state, all 6 million people, he runs smack into the constitution and its protections of the people.
Gov. Lee, by threat and intimidation, is legislating as if he had martial law powers. But military legislation is banned. “That martial law, in the sense of the unrestricted power of military officers, or others, to dispose of the persons, liberties or property of the citizen, is inconsistent with the principles of free government, and is not confided to any department of the government of this state.” (Article 1, section 25)
State response is, itself, an emergency
The governor’s seizure of the economy violates the general assembly’s intent to protect the people from the sort of disruptions Gov. Lee has imposed since his first EO in March. The damage imposed on cultural, social, educational, senior care, business life in Tennessee is, in effect, a natural disaster. By law, the judicial and police power in time of disease is focused upon the proveably contumaceous sick specifically, not upon the healthy generally. Gov. Lee — with Republican and Democratic politicians’ support, has deparicularized the application of coercion, and generalized it. Kept entirely out of his EO legislative scheme are due process rights that let any one person defy and challenge a claim that he is subject to police power because he is sick. (The courtroom protocol protecting individual rights is found, helpfully, in the tuberculosis statute at Tenn. Code Ann. § 68-9-206. Incarceration of suspect — Procedure — Appeal — Violation of quarantine.)
The people in general assembly formulated the emergency law to protect themselves from external threat to civil order. They did so by the judicious, limited exercise of state power upon state public servants in service to the general public and to the citizenry.
The general assembly cites many possible emergencies —
all of which threaten the life, health, and safety of its people; damage and destroy property; disrupt services and everyday business and recreational activities; and impede economic growth and development.
The emergency about which member are concerned afflicts the elderly and people “with special needs.”
The general assembly further finds that this vulnerability is exacerbated by the growth in the state’s population, in the elderly population, in the number of seasonal vacationers, and in the number of persons with special needs. This growth has greatly complicated the state’s ability to coordinate its emergency management resources and activities. *** It is the intent of the general assembly to reduce the vulnerability of the people and property of this state. Tenn. Code Ann. § 58-2-102.
Clearly, the people do not intend that the remedy to a disease be worse than the disease itself. The breakup of families by lockdowns at nursing homes, to name one, is a social cost not accounted for in the morbid daily reporting of CV-19 cases. The banishment of worship has hollowed out the life of Christianity, with consent of virtually all practicing churchgoers and their shepherds. Probably half of the small businesses ruined by the EO lockdowns will not reopen, according to one report.
The governor’s shutdown of the state is unconstitutional and a colossal mistake. Until Tennesseans overthrow this regime, they deserve to live under it.
‡ Article 11, Section 16. The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate.