TESTIMONY BEFORE GENERAL ASSEMBLY

AD HOC COMMITTEE

Co-chair Senator Haile, Representative Zachary, and distinguished members of the

Committee, I appreciate the opportunity to address this body today regarding the
constitutional implications presented in the Tennessee Emergency Powers Act
codified at TCA § 58-2-107.

I would begin by commending this Committee for undertaking this important

legislative inquiry.

I have reviewed the video of the opening session of this Committee on August 20,
and the excellent remarks given by both Dean Koch and Dean Gonzales.

And while I have tremendous respect for both Dean Koch and Dean Gonzales, the
questions presented here are NOT merely academic discussions reserved for law
school debate – they pose real consequences for the LIVES, the FREEDOMS and
the SAFETY AND WELLBEING of Tennesseans, in this generation and in
generations to come. The issues before this Ad Hoc Committee also cut to the
very core of the system of checks and balances that exist between the Legislative
and Executive branches of government which were instilled in our State
Constitution on June 1st of 1796.

All 50 states have some form of legislative grant of emergency power to their
governors which may be exercised in times of war, disease or catastrophic events.

The scope of this delegation varies from state to state. But in virtually every case, it
is a temporary grant of power that is constrained in its duration either until the
emergency situation ends, or by the lapse of a fixed number of days set out in the
statute.

And, unlike Tennessee, most of the states provide a mechanism for legislative
oversight of the Executive branch when their governors overreach their grant of
authority.

If you take a look at the emergency powers provisions in the statutes of all 50
states, as I have done, you will find there are some constitutional considerations
common to all of them.

1
 1) Virtually all of the provisions vest the ultimate authority in the Legislative
branch to nullify the grant of power to the Executive Branch;

Most often this can be accomplished by a simple joint resolution of both

houses.

Alaska, as it turns out has one of the most comprehensive systems of

legislative oversight and accountability by the Executive to the Legislative branch
in the event of a state disaster. I’m not sure why this is true in Alaska; maybe it’s
because it lies so close to Russia.

But I would recommend that this body take a look at Alaska Stat. Ann. §
26.20.040 which I believe installs some key provisions that assure the Legislature
maintains control over this delegation of power to the Executive Branch.

2) Another feature common to virtually all of these statutes is a time limit.

In Kansas and in Washington D.C., it is 15 days; in Pennsylvania, the limit is 90
days. Wisconsin allows for 60 days. But again, regardless of the time period, it is
still the Legislature that can intervene at any time by simple resolution and
terminate or modify this grant of power.

3) A third feature common to many states, and one that we are missing here
in Tennessee, is some mechanism that vests in the Legislature a simple procedure
for terminating the Governor’s exercise of emergency powers at any time both
chambers agree by joint resolution.

The problem with our statute is that TCA § 58-2-107 confers extremely broad
powers upon the Governor of our state. In the words of Dean Koch, the
Legislature has written the Governor a “blank check”. And there is no provision
for Legislative accountability or express authority to reign in the Governor’s
exercise of his powers – even though, constitutionally, this body has the inherent
authority to do so.

The justification often cited for the delegation of such broad emergency powers is
speed and expediency. Clearly, the Executive branch can respond more quickly to
a disaster than either of the other two branches of government. But this does not
mean we have to remove all accountability on the part of the Governor to
Legislative oversight.

2
I should point out that the virtually unchecked gubernatorial power established in
T.C.A. § 58-2-107 is not intended as a criticism of our present Governor.
Governor Lee has acted, in my opinion, well within the scope of authority
delegated to him by this body.

It is the spectre of abuse that may come through future administrations that should
be the focus of our concern. BECAUSE, we all can predict one thing with absolute
certainty --- future disasters will come.

As a constitutional lawyer, I often turn to the courts to vindicate the constitutional

rights of my clients. But, there was one chilling fact mentioned during Dean
Koch’s presentation. Did you catch it? He said when it comes judicial review
over an Executive’s exercise of emergency power, the Judicial branch rarely
second guesses the decision of a Governor, especially when he is acting at the
pinnacle of his power – under a delegation of authority by the Legislative branch.

The truth of Dean Koch’s statement has sadly been borne out by experience. State
and federal judges rarely exercise their judicial power to abolish an executive order
in times of emergency – whether it is a challenge to the mask mandate, or a “stay-
at-home order, or the setting of a curfew on bars and restaurants. On July 24th, our
U.S. Supreme Court in a case called Calvary Chapel v. Sisolak, Governor of
Nevada recently turned down a chance to review the power of the Governor of
Nevada to restrict to no more than 50 attendants those who gather for religious
worship. Meanwhile, Bars and Casinos in Nevada were exempt from this
numerical limitation.

Justice Gorsuch, writing in his dissent from the denial of an application by the
church said this:

“The world we inhabit today, with a pandemic upon us, poses unusual challenges.
But there is no world in which the Constitution permits Nevada to favor Caesars
Palace over Calvary Chapel.”

In our sister state of Kentucky, the Kentucky Supreme court issued a ruling in July
that put a halt to all legal challenges to Governor Beshear’s exercise of COVID-19
Executive Order. This means that no court in the Commonwealth of Kentucky
could ever hear an application for an injunction to stop any abuse by its Governor.

3
This Committee is not alone. Judges and lawmakers all across the country are
asking the same questions as you. How do we on the one hand grant needed
emergency powers to an Executive, and with the other hand reserve the right to
prevent an overreach of that authority once it is given.

Recently, a federal judge in Michigan asked the Michigan Supreme Court to clarify
whether Gov. Gretchen Whitmer has the authority to continue issuing or renewing
executive orders under either of the two Michigan statutes that govern her
emergency powers.

James Madison, one of the authors of the Federalist Papers, didn’t originate the
idea of checks and balances for limiting government power, but he helped push it
farther than anyone else before or since. Madison said “checks and balances are
necessary because men are not necessarily all angels.”

I submit to you the Constitution of the State of Tennessee vests in this General
Assembly a solemn duty and obligation to serve as a check on the ability of either
branch – whether Executive or Judicial – to usurp its constitutional authority.

To prevent future governors from trampling civil liberties of the citizens of this
great State during emergencies, some checks on their power are essential.

I will close with this. If our courts will not intervene when Governors abuse their
discretion, even to the point of infringement of religious liberty, then our citizens
must look to you – the Legislature – to champion freedom and protect us from
tyranny.

I respectfully urge this Committee to explore alternatives that restore a system

which assures accountability and serves as a check on the broad, unlimited powers
conferred on our Executive branch in Tennessee in times of emergency.

Thank you.