Legislators could undercut governor’s emergency orders

Amid questions about Tennessee’s elongated response to the COVID-19 pandemic, legislators are planning to cut drastically into a future governor’s ability to declare extended states of emergency.

“If this state of emergency we’re in right now were a pregnancy, we would be diapering the baby,” state Rep. John Ragan said Tuesday, contending the virus is affecting only people over 61 significantly.

With Tennessee’s state of emergency in its 10th month, House and Senate members of a committee studying the governor’s emergency powers are recommending two sets of proposals for the Legislature to consider in January, one of which is legally questionable and would allow a legislative council to end a state of emergency after 30 days and others that would enable the Legislature to stop it at 60 to 100 days.

Since Gov. Bill Lee declared the state of emergency in March, he has made multiple executive orders shutting down and limiting businesses and taking other steps, including the spending of federal and state dollars to deal with the coronavirus. 

The proposal approved by House members contains a measure stating when the Legislature is not in session, at the 30-day mark of an emergency a legislative council would have authority to end the order. 

The council would include House and Senate speakers, majority and minority leaders, caucus chairmen and three other members from each chamber who would evaluate the state of emergency over five days to determine whether it’s “prudent” for Tennessee to stay in a state of emergency, according to Rep. Jason Zachary, a Knoxville Republican who co-chairs the committee.

Lawmakers grew irritated with the governor’s executive orders in late spring, especially when it appeared he would not be allowing barber shops and salons to reopen after a prolonged shutdown. Lee quickly amended an order to let those businesses operate.

Tennesseans opposed to the economic shutdown ordered by the governor also rallied at the State Capitol early on in the pandemic, and many Tennesseans have opposed mask mandates issued by county and city mayors. The governor has shied away from making a statewide mandate, while giving mayors the authority to make those decisions.

Zachary, who is sponsoring legislation to shift decision-making authority from boards of health to county mayors in six of the state’s largest counties, mentioned that the state has never had an “issue with overreach” during natural disasters or other types of threats.

Asked by state Rep. Bob Freeman of Nashville if that implied he has seen “overreach” during the COVID-19 pandemic, Zachary said, “I believe the governor has provided measured and steady leadership through this pandemic.”

Nevertheless, this proposed legislation would not take effect until the current state of emergency is ended, Zachary said.

Legislators plan to take both proposals and turn them into legislation to be considered when the General Assembly convenes in January. 

The proposals are similar in that they would create separate states of emergency for health pandemics such as the COVID-19 crisis, setting up different guidelines than for emergencies stemming from a natural disaster or terrorist attack.

Under the House version, a state of emergency would not be extended beyond 60 days without a joint resolution of the Legislature.

The Senate version allows the governor to declare a health-related emergency for up to 100 days. But if the governor decides to extend the emergency, he would have to call a special session between the 60-day and 100-day mark.

If the Legislature is unable to meet – for example, because too many members are sick – the governor’s order could be extended automatically.

Both proposals also call for the governor to notify lawmakers within 12 or 24 hours before issuing new executive orders. In addition, legislative committees will receive reports from the Department of Health and delve into the financial aspects of the governor’s orders, including looking at no-bid contracts.

Sen. Ferrell Haile, a Gallatin Republican co-chairing the committee, pointed out state law already allows the Legislature to convene during states of emergency with two-thirds of the body’s signatures. In fact, the General Assembly met twice this year after the governor declared the state of emergency but took little action related to the pandemic other than passing a budget for fiscal 2021-22 and nursing home liability legislation.

The Senate questions whether creation of a legislative council to issue a stay of an emergency order is constitutional, according to Haile. Yet he believes new steps are necessary to give the Legislature more voice in decisions.

“With this we’re really trying to look down the road 50 to 100 years, what could take place, worst-case scenarios. We’re far from the worst-case scenario. We’re not criticizing this governor. I think he has made the best decisions possible with the information that he’s had,” Haile said.

Lawmakers appear somewhat split, though, over whether a statewide pandemic exists affecting the entire population.

Ragan, an Oak Ridge Republican, argued that a state of emergency should have a limited time frame based on statistics showing only significantly higher death rates for people over 61. Ragan has worn a mask only occasionally since the pandemic started and has asked people to remove theirs during House testimony so he could understand them.

One of the few members to oppose the House recommendations, Democratic Rep. Johnny Shaw of Bolivar, contended that until lawmakers agree on ways to handle the pandemic, they shouldn’t be trying to take authority from the governor.

“I don’t see how the General Assembly is going to micromanage a pandemic,” Shaw said. He questioned whether the state needs a governor if the Legislature takes on more authority.

Freeman also disagreed with the move to separate health emergencies from natural disasters and security threats, saying they should operate under the same rules, but he agreed that the Legislature should be called back into session during extended states of emergency to determine what direction to take.

Doug Kufner, spokesman for House Speaker Cameron Sexton, said Sexton will review today’s House recommendations by the Emergency Executive Powers Committee with Chairman Zachary soon. 

“We are looking forward to drafting language for legislation and allowing the legislation to work itself through our committee system,” said Kufner.