Breaking: Bill Lee Responds to HB324
Our first (and only) scoop of this political session
Late last week, Tennessee Governor Bill Lee returned HB324 to the legislature without his signature. This is a way of allowing a bill to become law while not fully approving of it. Along with the returned bill, the Governor also sent a letter to the Senate (since that is the house in which the bill originated), explaining the reasons why he chose not to sign the bill.
Since TFI wrote HB324, worked with the sponsors, and whipped committees to get it through, we had an opportunity to take an early look at that letter. Here it is.
In his letter, Governor Lee states that he is concerned “about bills that adversely impact the State’s ability to protect the 7 million Tennesseans we serve”, and that other bills “currently pending” may “compromise Tennessee’s disaster response capabilities”. After clarifying that HB324 “merely repeats well-established legal principles”, he returns it without his signature as an act of protest, to “caution strongly against legislation” that would impact his ability to protect Tennesseans. The other bill he’s referring to is likely Chairman Zachary’s HB132, which would put more specific restrictions on emergency executive orders.
We’re grateful that the Governor did not veto this legislation, but since he chose to send a letter, we thought it appropriate to briefly reply.
The bill in question, HB324, is here:
This bill did two things:
In section 1, it added a phrase at the end of the paragraph which said that executive orders, proclamations, or rules can’t contravene (violate), suspend, or conflict with a provision of the Constitution of Tennessee. Previously the code ended with that semicolon after the words “effect of law”.
In section 2, we clarified that when the Governor suspends laws or rules, he may not suspend the laws in subsections (m) and (n). In other words: he can’t suspend the laws that say which laws he can’t suspend. Almost a tautology, but nonetheless, important to note.
The Governor, in his letter, actually agrees that the law is good. In fact, he says the bill “merely repeats well-established legal principles.” We agree with this: the bill is not really a new law, but simply a clarification of something that should have been clear all along.
But herein lies a problem. If Governor Lee and his staff, writing this letter, agree that this bill is nothing new, then why did he take the actions that he did during COVID? Using executive power during the pandemic, Governor Lee and his staff used this very piece of code to justify violating the separation of powers clause in the Constitution.
This is a point we made back in February:
For instance, a few years ago an executive order referenced this code (the executive order statute that was changed with HB132) as a justification for “suspending law”. That order banned public access to certain businesses and required that others close entirely for a period of time. The order was later amended, using the same justification, to require all Tennesseans to stay at home unless engaged in essential activities. Both of these examples go beyond suspending functions of state government or reallocating state resources. In fact, these orders were not even suspensions of law — they were the creation of new laws entirely. New laws that banned certain categories of business from operation, or that limited freedom of movement for law-abiding Tennessee citizens.
By using executive power to create new laws regarding freedom of movement, the legality of certain businesses, the size of gathering Tennesseans could attend, etc. the Governor clearly went beyond the scope of powers allowed by the Tennessee Constitution. He created laws, which is clearly the power of the legislative branch, and was never granted to him in emergency powers.
And that’s why we passed the law. Because even though it simply “repeats well-established legal principles”, those principles weren’t being followed. We, too, believe that the executive should have power to deal with dangerous storms and disasters. But we believe that power must still reside within the confines of our constitutional system.
We are grateful to Chairman Rusty Grills and Senator Mark Pody for fighting to get this bill through, and to Representative Jody Barrett for initially sponsoring the legislation in the House. Hopefully it will act as a clear reminder to all future administrations of their responsibility to follow the constitution, even in times of crisis.
Well done David and all working hard with TFI
Thank you for this.