Emergency power, to be constitutional, must operate vertically, not horizontally.
In Tennessee we suffer from executive government that pretends this monolithic and unitary power runs left and right, not up and down — down into the executive agencies.
The abuse began 175 days ago when Gov. Lee put the entire population under house arrest with executive orders No. 22 on March 30 and No. 23 on April 2. The damage to people and the economy is immeasurable, but no doubt passing dozens of billions of paper dollars.
This scorched earth response to the alleged CV-19 virus (aka coronavirus or SARS-CoV-2) contributed to economic devastation across the entire economy in the state, and contributed to a loss of U.S. gross domestic product in the second quarter of more than 37 percent, a record.
Executive power, according to Tenn. Code Ann. § Title 58, chapter 2, section 107, operates vertically, down into executive branch agencies to increase efficiency by setting aside rules during emergency, eliminating deadlines, requirements and standards for convenience of government response. The power cannot operate horizontally across society, across the population, pretending to affect men, women and children among the people of Tennessee, because martial law by any party is prohibited under the bill of rights, section 25, “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.”
I reread the four pages of type that are this statute, and find nothing to indicate they give the governor new powers, powers that he didn’t have prior to the emergency — powers that let him control the activity of private men, women and children among the 6.8 million people in the state.
The governor and his party (Republicans, Democrats, staff people) play on fear and dread in spreading what is effectively a form of state terror. They act without the power that would come to them if they had obeyed and complied with with T.C.A. § 68-5-104, the crucial first step in any epidemic requiring a certification of an outbreak of a contagious disease.
The state imposes terror, defined as follows by Black’s Law Dictionary, 4th ed.,
Alarm; fright; dread; the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger.In an indictment for riot, it must be charged that the acts done were “to the terror of the people.” See Arto v. State, 19 Tex.App. 136.
As executive orders apply to agency personnel, they are to be understood as entirely legal. If respondent Lee’s EOs apply to every man, woman and child compulsorily, they are illegal. If attorney general Herbert Slatery III argues in court that they apply generally upon the men, women and children in Tennessee, apart from the health law at Title 68, he will be arguing for an illegal act presented in spite of the supreme law. He will be arguing for an interpretation forbidden by the bill of rights.
He might argue in the alternative, as have officials in other states, that the orders are merely advisory, as they are addressed to “all persons.”
(20) “Person” includes a natural person or entity organized under the laws of this state or any other state or territory of the United States or the federal government, as the case may be, and includes both the singular and plural;
Tenn. Code Ann. § 58-2-101 (West)
Does “natural person” include man, woman and child? The state can’t have it both ways. If “person” means man, woman and child, then flesh-and-blood men and women are in view, not corporate entities under law.
Do EOs apply to flesh and blood citizens, or only to persons that are employees or corporations? What does the governor intend to be understood by his stay-at-home order in its reference to person?
If he argues that the economy meltdown is a mistake and misunderstanding, that there is no injury to the people at all, because EOs are advisory to the people (and not mandatory), then why the continued deception by four-times-a-week press conference for months by respondent Lee and governor-fueled media coverage convincing the people that the governor’s executive orders apply horizontally upon the people of Tennessee?
If power is intended to apply only to agencies and not the people, then virtually all Gov. Lee’s public rhetoric is evidence of fraud and deception. If the respondents intend advisory EOs to be understood by the people in state of Tennessee to apply compulsorily upon them, respondents are caught willfully engaging in fraud and tyranny in violation of oath of office.