Wednesday, May 13, 2020

Representative Bruce Griffey request a legal opinion from the Attorney General as to the constitutionality of the Governor's Executive Orders.

Rep. Bruce Griffey
From Rep. Bruce Griffey, TN Representative District 75 - Yesterday afternoon, I sent the attached letter to TN Attorney General Herbert Slatery, questioning the legal authority of the Governor to issue his series of Executive Orders in response to the COVID-19 virus and whether the Governor’s Orders infringed upon the rights of Tennesseans as guaranteed by the U.S. Constitution and/or Tennessee Constitution. When I ran for office, I ran on a platform of small government, limited government – a campaign platform I intend to honor. Moreover, when I took my oath of office, I swore to not only support the TN Constitution, but also to not consent to any act or thing that shall have a tendency to lessen or abridge the rights and privileges of the people of this state as declared by the Constitution of this State. I intend to uphold my oath of office, and defend the Constitutional rights of Tennesseans and protect them from government over-reach.
Regrettably, as of today, a number of businesses remain closed entirely or are only operating at partial capacity as a result of the Governor's Executive Orders. A number of my constituents and other Tennesseans remain unemployed. A large number of people can enter Walmart or Lowe’s or even a gym, but children are unable to regain normalcy without little league and youth sport teams being able to practice and play. Consequently, I requested a legal opinion from the Attorney General as to the constitutionality of the Governor's Executive Orders.
As a TN licensed and practicing attorney for 30 years, serving as both an Assistant Attorney General and Assistant District Attorney General, I have researched this issue myself and question the legal authority for the Governor to issue his Executive Orders purporting to close businesses, dictate Tennesseans’ healthcare decisions or prohibit people from exercising their right to gather.
Specifically, I question the constitutionality of the “Emergency Management Powers” statute under which the Governor is purportedly acting - specifically T.C.A. § 58-2-107. I believe the Tennessee General Assembly exceeded its Constitutional authority 20 years ago when it passed this law to give the Governor legislative power in emergency situations. Article II of the Tennessee Constitution, which addresses the “Distribution of Powers” and divides the “powers of government” “into 3 distinct departments: legislative, executive, and judicial.” In essence, the Tennessee Constitution explicitly provides that neither the Executive branch (i.e. the Governor) nor the courts can create law. Only the legislative branch can create law. Moreover, nothing in Article III of the Tennessee Constitution, which covers the “Executive Department” and the Governor’s powers, permit any legislative power to be given to the Governor or permit the Governor to exercise legislative power. Also, notably absent from Article III or any other provisions of the Tennessee Constitution is any mention of the power of the Governor to issue “Executive Orders”.
Moreover, I believe the Executive Orders themselves infringe upon the unalienable rights guaranteed to Tennesseans by both the U.S. Constitution and the TN Constitution. When the Governor issues an Executive Order, prohibiting Tennesseans from walking the trail of a state park or mandating that Tennesseans stay at home, I submit the Governor is ‘disseiz[ing]’ Tennesseans of their Constitutional ‘liberties’. When the Governor issues an Executive Order allowing Walmarts and Lowes and other big-box corporate giants to remain wide open for business, but banning small business owners from opening the doors to their restaurant, their bar, their clothing boutique, their gym or their bowling alley, I submit such Executive Order is unconstitutional by ‘destroy[ing] or depriv[ing]’ Tennesseans of their ‘property’. 

When the Governor issues an Executive Order, forbidding a self-employed barber or beautician from exercising their trade and providing services upon which they rely to pay their mortgage, feed their family and make their car payment, I submit such Executive Order is unconstitutional in violation of Sections 8 and 21 of the Tennessee Constitution. When the Governor issues an Executive Order, disallowing a little league team from playing baseball in an open, outdoor field or friends from gathering to watch the exchange of wedding vows and celebrate the sanctity of a marriage, I submit such Executive Order is unconstitutional inasmuch as it, among other things, violates Section 23 of the Tennessee Constitution, which guarantees Tennesseans the Constitutional ‘right, in a peaceable manner, to assemble together for their common good’. When the Governor issues an Executive Order overriding the informed decisions of trained and licensed doctors and stripping Tennesseans of their right to make their own healthcare decisions by banning elective medical procedures, I submit such Executive Order is unconstitutional inasmuch as it strips Tennesseans of their ‘liberty’ and ‘is inconsistent with the principles of free government’.

I posited the following 4 specific questions to AG Slatery, requesting a formal legal opinion:
  1. Whether the Tennessee General Assembly exceeded its Constitutional authority when it passed T.C.A. § 58-2-107?;
  2. Whether the passage of T.C.A. § 58-2-107 amounted to an effort to amend the Tennessee Constitution without following the proper procedure to do so by equipping the Governor with powers not otherwise delegated to him under the Tennessee Constitution?;
  3. Whether the Governor exceeded his Constitutional authority when he issued the above-described Executive Orders?; and
  4. Whether the above-described Executive Orders issued by the Governor violated any Constitutional rights as guaranteed by either the U.S. Constitution or the Tennessee Constitution to Tennesseans?
I believe in supporting an individual’s Constitutional right to liberty and right to exercise the freedom of choice. An individual should be able to decide for himself or herself whether to assume any potential health risk of attending a public gathering or eating at a particular restaurant or shopping a particular store or getting a hair cut or whether they want to remain home. By the same token, a business should be able to decide whether to open or shutter its doors, and a self-employed individual should be able to make his or her own decision about whether to offer services or not. People should have the freedom to make their own decisions and, with such freedom, should take responsibility for their decisions. The government should not be making healthcare decisions for its citizens and overtaking individual decision making and telling people whether they should stay home or go out and when, where and how they do it.
Rod's comment:  I am pleased to see this.  I commend Representative Griffey for seeking a determination as to the legality of the Governor's actions.  I am not one who doubts the seriousness of the Corona Virus, but there are a lot of unknows as to rates of infection and immunity and best policies for addressing the epidemic.  However, even if it was equal to the Bubonic plague and we knew it, government should not trample's rights.  Government imposing restrictions without proper authority and due process is lawlessness and tyranny.  It may be that the actions governments have taken are legal.  I doubt it, but if that is so it needs to be explained how it is so.  In wars we have had restrictions on our liberty that would not be tolerated in peace time, everything from drafting into involuntary servitude to defend the country, to rationing to restrictions on speech. If there needs to be provision for similarly giving governments near dictatorial powers during a massive health crisis there needs to be a means of authorizing that power and a means of declaring the crisis at an end.  It should not be arbitrary.  Below is the full letter Rep. Griffey sent to the AG.


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