The Limits of Power
A balancing act for the ages
In 2025, TFI is lobbying for five primary bills and numerous smaller ones. These bills cover a gamut of issues, including protecting private property, advocating for better health for our citizens, and ensuring that international agencies can’t force their will on our citizens. But there’s one that shines above all the others for the sheer quantity of blood and tears we’ve spent on its advocacy — clarifying the extent of the Tennessee Governor’s emergency powers.
Under current law, our governor has the right to enact executive orders during an emergency, and these executive orders have the force of law. Emergencies may be natural, technological, or manmade, and must have the potential to cause substantial injury to the population or substantial damage to property.
Contrary to some ideas of democracy, this single and broad-reaching power of dealing with emergencies is an extremely important role of the executive. When combating serious emergencies, like a natural disaster or foreign invasion, we want a government that responds in hours or minutes, not weeks or months. Convening the legislature to swap staff between agencies or to redirect monetary resources would result in unacceptable delays and cause a myriad of problems. So we absolutely want the governor to execute — and during emergencies, the faster the better.
But this power could also be misused, or be too broad. As we see at the federal level, executive power is increasingly the way that government gets everything done — the legislature is slow and unwieldy, so each administration pushes the envelope further to see how far they can get before consulting congress.
In Tennessee, both the creation and limitation of these powers reside in Title 58. There, the legislature created a thorough roadmap for executive powers, explaining their intention in creating the powers and also laying out clear definitions of how the power ought to be used. However, there seems to be some fuzziness about the extent of these powers, which probably stems from different opinions about section 107. There, the law says that the governor can, “Suspend any law, order, rule or regulation prescribing the procedures for conduct of state business or the orders or rules or regulations of any state agency.” This seems to limit the suspension powers to those laws that deal with the way the state operates, which should be under the governor’s power. For instance, under normal circumstances certain government buildings or proceedings might be open to the public during normal working hours. But in a state of emergency, the governor may close buildings or send state employees home. That would be a suspension of law that would affect the normal procedures for conduct of state business — and would be clearly within his right.
But that is not how the state government interprets this statute. For instance, a few years ago an executive order referenced this code 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.
We can dither about the necessity or efficacy of these particular orders, but that’s not the point. The question isn’t whether something worked or whether it should have been done. The question is, Who should have this kind of power? Where does executive power end and lawmaking power begin?
It’s our belief that executive power should primarily reside in taking action with resources and people that the governor already has at his disposal. Activating the national guard, reallocating budget money, or suspending government operations are all within his purview. But a single man cannot be vested with the power to make law. Nor should he be given the power to suspend laws that have been enacted by the legislature, and certainly not laws enshrined in our state constitution. The people have the right to swift action from their government, but they also have the right to trust that their most fundamental rights will remain inviolate. It’s not a question of whether a governor makes the right call, but whether it’s his job to make the call at all.
Put another way, if the governor were the CEO of the state, it would be his job to direct his employees (state agents) and to serve his customers (the citizens). Things get out of hand when we get this backwards and start to believe that his job is to direct his citizens rather than serve them. Directing citizens (using law) within the confines of the constitution is the realm of the legislature, not the executive.
So. In order to improve the separation of powers in our State, we’re bringing forward the bill that we mentioned above. It will clarify that the constitutional rights of Tennesseans cannot be suspended under any executive order, for any reason, ever. It’s the sort of bill that ought to be easy to argue for, easy to understand, and easy to vote for. We’re feeling good about it passing.
SB27 will be heard on Tuesday, February 25, in Senate State and Local Committee. Mark Pody is kindly sponsoring it for us.