Lawmakers begin review of sweeping emergency powers granted to governor

By: Anita Wadhwani - August 21, 2020 5:31 am

Gov. Bill Lee gives his bi-weekly media briefing Aug. 18. (Photo: Tn.gov)

Since the onset of the pandemic in Tennessee, Gov. Bill Lee has drawn on sweeping emergency powers granted under state law to issue 44 executive orders, including stay-at-home orders, business closures and limits on nursing home visitors.

On Thursday, state lawmakers met to consider whether those powers should be reigned in going forward.

“Does (the law) in a time of pandemic specifically go too far in allowing the executive branch to take steps that infringe on the individual liberties of our people even during a health crisis?,” asked Rep. Jason Zachary, R-Knoxville, who serves co-chair of the Ad Hoc Committee to Study Emergency Powers.

“Is it appropriate for a state of emergency to continue for months without the input of the legislative branch?” he said.

Rep. Jason Zachary, R-Knoxville (Photo: Tennessee General Assembly)

The 17-member group will not be reviewing individual executive orders issued by Lee over the past six months. Instead the group will make recommendations on whether the state’s 20-year-old Emergency Powers Act, enacted with natural disasters or terrorism in mind, goes too far in granting extraordinary powers to a sitting governor.

“My concern is for my grandchildren,” said Rep. Dan Howell, R-Georgetown.

“Moving forward, how do we maintain the balance of power in Tennessee even in the midst of a pandemic?” Howell said. “What COVID-19 has done, I think, is uncover some of the unintended consequences in the existing law, which has effectively removed the legislature from the process of decision-making.”

The Emergency Powers Act gives Tennessee governors broad authority over nearly all aspects of the state’s emergency response.

“The governor is responsible for addressing the dangers presented to this state and its people by emergencies,” the law says. “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.”

Tennessee’s emergency powers law is among the broadest in the nation, William Koch, Jr. president and dean of the Nashville School of Law, told lawmakers.

“You have given the governor, in effect…a blank check,” said Koch.

But Koch cautioned lawmakers to consider how much responsibility to give themselves during a state emergency. Emergency provisions such as Tennessee’s give the state’s chief executive the flexibility to respond quickly during emergencies.

“You are a part-time legislature,” he said. “If you have an emergency going on in June after you adjourned…

Options for modifying emergency powers could include narrowing the scope of authority granted to the governor during emergencies, adding oversight mechanisms that might include requirements of regular reporting by the governor or placing time limits on the length of an emergency the governor can operate under before approval from the legislature would be required.

The bipartisan group of lawmakers will hold at least two more meetings in September to weigh possible possible recommendations, which would be taken up with the legislature reconvenes in January.

The Williamson Herald reported Wednesday that Rep. Glen Casada, R-Brentwood, plans to file legislation to limit the emergency powers granted to the governor to 30 days. Any extension of those powers would require legislative approval. Casada is not on the legislative committee reviewing those powers.

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Anita Wadhwani

Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee.