Legislative control over governor’s emergency powers in limbo

Gov. Bill Lee addresses Tennesseans from the Governor's Residence. Lee issued an executive order limiting public gatherings to no more than 10 people. (Photo: YouTube)
Gov. Bill Lee addresses Tennesseans from the Governor's Residence om Dec. 20, 2020. Lee issued an executive order limiting public gatherings to no more than 10 people (Photo: YouTube)

Legislation stopping the governor from issuing a state of emergency for more than 60 days is meeting different fates in the Senate and House this year.

On one hand, bills shifting authority to county mayors and school boards away from public health boards, mainly in Tennessee’s six largest counties with independent health departments, have drawn support because of the cacophony of complaints coming from confusion over different rules from one county to the next.

Gov. Bill Lee, for instance, gave county mayors the power to mandate masks, which led to a patchwork of requirements statewide at the height of the COVID-19 pandemic.

But taking away the governor’s authority, especially with the pandemic lingering, is proving more difficult.

Sen. Ferrell Haile, R-Gallatin (Photo: Tennessee General Assembly)
Sen. Ferrell Haile, R-Gallatin, says restaurants don’t need tax breaks: they already have long lines of Tennesseans streaming in. (Photo: Tennessee General Assembly)

Sen. Ferrell Haile, R-Gallatin sent Senate Bill 859 to summer study, meaning it is on hold for the year, even though an ad hoc panel studied the issue in-depth in late 2020. Meanwhile, Rep. Jason Zachary, R-Knoxville, confirmed Monday his version of the legislation, House Bill 869, is slated to be heard Wednesday in the House Finance subcommittee.

Haile and Zachary co-chaired an ad hoc committee last fall that studied the governor’s emergency powers but they are taking different avenues. Consequently, in the first year of the 112th General Assembly, the House could move on its version of the legislation, which is more aggressive, while the Senate could follow up in 2022.

“It’s something that needs to be addressed within the statute because as we learned in the ad hoc committee, the statute is wide open,” Zachary said. “If we had not had Gov. Lee and his measured and steady approach to that, things could look very, very different. Our economy could be suffering even more than it is right now.”

State law gives the governor wide authority to issue executive orders and suspend laws and regulations for 60 days at his discretion, except involving weapons, Zachary pointed out.

Gov. Lee said last fall his administration was working with the ad hoc committee. But Republican Senate leaders confirmed recently the Lee Administration was not enamored with the legislation. A spokeswoman for the governor said Monday the bill was “flagged” at one point and doesn’t appear to be moving.

Haile said Senate members of the ad hoc committee voted to recommend the legislation in 2020 thinking the state would be out of the COVID-19 pandemic by this spring. Gov. Lee ordered the state of emergency in March 2020 to stem the spread of the coronavirus, putting in place stay-at-home measures and ordering non-essential businesses to shut down.

For the most part, lawmakers supported the governor’s efforts, except for one outcry over a delay in reopening small businesses such as barber and beauty shops. Protesters also gathered around the Capitol at least once in 2020 calling for the resumption of the economy, even with the COVID-19 spiking.

Disgruntlement within the rank and file of the Legislature spurred the debate as well over the governor’s authority. Yet Haile isn’t ready to move.

“We need to wait until after this is over. Get the information we can now, but wait until we’re out of this and make decisions for 50 years down the road,” Haile said.

He noted his plan from the outset was not to tie the hands of Gov. Lee but to set policy for the long term. 

Lt. Gov. Randy McNally, photographed at the Tennessee Capitol on March 18, 2020 by John Partipilo.
Lt. Gov. Randy McNally, photographed at the Tennessee Capitol on March 18, 2020 by John Partipilo.

Senate Majority Leader Jack Johnson, R-Franklin, agrees, saying the state is not “completely out” of the pandemic, thus it’s not time to reconsider how to manage the state during a state of emergency.

Lt. Gov. Randy McNally points out that lifting a state of emergency would cause the state to lose federal funding. Republican leaders have criticized the Biden Administration’s American Recovery Act, but they plan to accept the money anyway.

“I think the decision probably was, after some consideration and talk with the (Lee) administration, to not proceed with it, that we had enough safeguards, particularly while we’re in session to address any problems that would come up,” McNally said.

He pointed out the governor put together the Financial Stimulus Accountability Group, including new appointees Haile and House Finance, Ways and Means Committee Chairwoman Patsy Hazlewood, R-Signal Mountain, to steer federal funds. McNally, House Speaker Cameron Sexton, Senate Finance Chairman Bo Watson, Senate Democratic Caucus Chairwoman Raumesh Akbari, Rep. Pat Marsh, R-Shelbyville, and Rep. Harold Love, D-Nashville, also serve on the panel.

The group is charged with determining how to spend about $8.56 billion in new federal funding. Tennessee has about $5 billion going toward education, some of it remaining from 2020.

Talk surfaced this year about holding a special session to oversee the money. But that appears to be on hold with the new round of appointments to the governor’s working group.

Meanwhile, senators who served on the ad hoc committee wanted more time to transpire before passing legislation dealing with the governor’s executive powers and opted to move the effective date of any bills until 2026, according to Haile. Then, they decided to send the legislation to summer study and take it up in 2022, instead of during the “middle of the pandemic,” he said.

According to House Republican Caucus Chairman Jeremy Faison, though, Zachary’s legislation has “good solid support … but the Senate just wasn’t there.”

“Sometimes the Senate doesn’t read their bills. Sometimes they do. This time they read their bill and they decided they didn’t like it. That’s the beauty of the way this place works,” said Faison, R-Cosby.

House members who served on the ad hoc panel were unanimous in their support of moving forward this year, Zachary said.

But Democrats voted against the bill in a committee.

Republican House Caucus Chair Jeremy Faison. (Photo: John Partipilo)
Republican House Caucus Chair Jeremy Faison. (Photo: John Partipilo)

  Sometimes the Senate doesn't read their bills. Sometimes they do. This time they read their bill and they decided they didn't like it.   – Rep. Jeremy Faison, Republican House Caucus Chair

“I think it ties his hands,” state Rep. Jesse Chism, D-Memphis, said. “Sometimes things have to be done within a day’s notice, and we want to empower our governor to still be able to do that.”

Under the legislation, during a public health emergency caused by bioterrorism, epidemic, pandemic or in case of novel and highly fatal infectious agents or biological toxin, the legislation would limit a governor’s state of emergency or executive order to 60 days. If the governor wants to extend a state of emergency or executive past 60 days, the General Assembly would have to grant it with a resolution.

During those emergencies, a legislative council would be created including the speakers of the House and Senate, majority leaders, minority leaders, majority caucus chairs of each house and members appointed by the speakers from each of the state’s grand divisions.

If the Legislature is out of session when the state of emergency is declared, the legislative council, by a two-thirds vote, would be able to grant a 15-day extension.

The General Assembly would be able to end a state of emergency or executive order based on a public health emergency by passing a joint resolution. If the Legislature is out of session, the legislative council would have authority to suspend the state of emergency or executive order after it’s in effect for 30 days.

The suspension would remain in effect until a special session of the Legislature is called to address the state of emergency.

The Legislature took a break in March 2020 when the pandemic hit, then came back twice during the year, once to deal with the budget and another time to pass a COVID-related business liability bill, as well as legislation designed to tamp down on protesters.

Gov. Lee called the Legislature into a special session in January to deal with education and learning loss stemming from the pandemic before it went into regular session in February.