Over the past several days I have been enlarging the relevant Tennessee law before my eyes, making the sentences huge in front of me — as if the letters of the words in the law are 9 feet tall, and I stand before them at 6-foot-2 looking left and right, and watching the words and sentences of the enabling law give out their meaning, left to right.
By David Tulis / NoogaRadio 92.7 FM
I am looking for the law that requires as a duty the governor, Bill Lee, and his health commissioner, Dr. Lisa Piercey, to analyze the CV-19 disease and then declare an epidemic or contagion. Were these steps done?
I suspect they were not — I believe they were not and that Tenn. Code Ann. § Title 68, health, was entirely ignored in the media-driven panic that prompted a press conference March 7, the day on which it was reported in Tennessee the existence of the first case of CV-19.
It appears the state is operating totally ad hoc, totally extemperaneously, totally on the fly since the beginning, under the pretended power of the emergency statute that lets officials apply the quarantine power without having to declare quarantine.
In deconstructing the law and reading it with great care, I offer the following as the protocol for determining the steps the Lee administration should have taken. It should have taken these steps. Why? To safeguard the liberties of the people and the rich commerce and profitable travel of the people of Tennessee.
These are 6.8 million people living in Tennessee, which covers 42,000 square miles.`
- Make sanitary investigation to preserve and improve public health Tenn. Code Ann. § 4-3-1803
- Determine “causes of disease, especially epidemics” Tenn. Code Ann. § 4-3-1803
- “Print, publish and distribute documents, reports, bulletins, certificates and other matter relating to the prevention of diseases Tenn. Code Ann. § 4-3-1803 [Printing a certificate = certifying?]
A KEY PHRASE IS HERE
The commissioner’s duty is to —
(2) Make sanitary investigations and inquiries respecting the causes of disease, especially epidemics, the causes of death, effects of employment, habits, localities and circumstances, upon the health of the people; Tenn. Code Ann. § 68-1-104 (West)
In other words, how do employment, habits, localities and circumstances affect the health of the people in context of disease. Did Dr. Piercey investigate effects of EO telling people to stop earning their bread, and whether employment itself is the epidemiological cause of spread? Did she investigate habits and their effect on health of the people? Localities? Circumstances? Investigations into these are her DUTY while making investigations and inquiries respecting causes of disease, especially epidemics.
(2) Make sanitary investigations and inquiries respecting the causes of disease, especially epidemics, the causes of death, effects of employment, habits, localities and circumstances, upon the health of the people; Tenn. Code Ann. § 68-1-104 duties of commissioner
- CERTIFICATION of source of communicable disease, DECLARATION of epidemic
No explicit protocol in TCA for declaration of determination of source of disease. It’s implied, shown obliquely, in § 68-5-104. Isolation or quarantine
(a)(1) It is the duty of the local health authorities, on receipt of a report of a case, or suspected case, of disease declared to be communicable, contagious, or one which has been declared by the commissioner of health to be subject to isolation or quarantine, to confirm or establish the diagnosis, to determine the source or cause of the disease and to take such steps as may be necessary to isolate or quarantine the case or premise upon which the case, cause or source may be found, as may be required by the rules and regulations of the state department of health. [The ref. To “one which has been declared by the commissioner of health” is a statement that lacks an antecedent. As far as I know, Dr. Piercey has not “declared” CV19 to be subject of isolation or quarantine. Had she done so, that would evoked Title 68. I’m doing mandamus because she has not “evoked” Title 68]
(2) The commissioner is authorized and directed to promulgate and publish such rules and regulations as may be necessary to prevent the spread of contagious or communicable diseases in order to protect the public health and welfare. [ Gov. Lee will say his EOs are just that, and authorized under this section, but authorized under Tile 58, emergency, not Title 68, health ]
(b) Any person isolated or quarantined in accordance with any statute or rule or regulation promulgated and published in accordance with statutes relating to isolation or quarantine, who willfully escapes from such isolation or quarantine, commits a Class B misdemeanor.
(c) Whenever any one of the local health authorities, either municipal or county as the case may be, isolates, quarantines or placards any person or house for communicable diseases, it is the duty of the health official to deliver or cause to be delivered to the head of the household a copy of this law or such portion of this law as may pertain to the particular case under consideration.
Tenn. Code Ann. § 68-5-104 (West)
The question for me is why is there no explicit statute. Do these provisions that look backward at the certification act assume a common law power? Or is there no real power, no real authority, upon which these later powers ride? Can an action step law operate without a precedent law that creates the initial power to investigate and declare an epidemic based on research and epidemeology?
- The commissioner is charged with making “appropriate recommendations **** under this title and title 58, chapter 2.”
In the event that an emergency or disaster as defined in § 58-2-101 occurs, that involves outbreaks of disease that present a danger of an epidemic, the commissioner shall make appropriate recommendations to the governor for actions under this title and title 58, chapter 2, to allocate all available heath1 care resources in the affected areas for immediate and long-term health care needs of the affected populations. Tenn. Code Ann. § 68-1-204. Recommendations to the governor
- Once the recommendations are heeded and the disease is an epidemic, the commissioner has two powers at her disposal: administrative hearings in agency (contested case) or judicial hearings to compel under quarantine power) [this step is after a finding of an epidemic. They are as follows:
(5) Have the authority to petition the chancery court of Davidson County for judicial review, pursuant to § 4-5-322, of any final order of any board or similar multi-member agency administered by or administratively assigned to the department. This subdivision (5) shall not apply to the boards created by title 59, chapter 8; chapter 201 or chapter 211 of this title; or title 69, chapter 3;
(6) Have the authority to appoint administrative judges from the administrative procedures division of the office of the secretary of state, pursuant to § 4-5-301, to hear contested cases before the department, and contested cases before any board or similar multi-member agency administered by or administratively assigned to the department, upon the request of such board or agency. These boards and agencies are authorized to utilize such administrative judges; and
Tenn. Code Ann. § 68-1-104
The Tennessee economy is in ruins, and a self-reinforcing death spiral is taking hold in the lives of millions of people who feel themselves increasingly desperate. Are they victims of the Republican and Democrat state government? Did the state operate according to law?
Is Gov. Lee acting lawfully — and did he act within lawful powers from the beginning? Or has he acted arbitrarily and capriciously in bringing us into this depression?