At the request of Senator Mark Pody, Attorney General Skrmetti has issued an opinion on questions surrounding the use of emergency powers and the separation of powers doctrine in Tennessee.
Most notably, the opinion states that “No constitutional provision expressly justifies a delegation of emergency power to the governor or another department.” We have argued from day one that our governor’s actions in response to COVID-19 through the broad use of emergency powers was unconstitutional in Tennessee. And for four years now, we have petitioned the General Assembly to take legislative action in limiting these powers so that we may never experience rule by executive fiat, again. That has not yet happened.
At the request of Senator Pody, I have drafted a response to this opinion. I largely agree with General Skrmetti’s take on our separation of powers doctrine here in Tennessee, though I feel that he weighs his comments a bit too heavily on the interpretation of the courts. In the words of UT law professor Glenn Reynolds, “There are two ways to interpret a constitution. There is to predict what courts will do, and there is what I think is right. Shockingly, those two things do not always overlap.”
My sincere hope is that this opinion will catapult the 114th General Assembly into action in the upcoming 2025 legislative session to finally take steps in limiting the governor’s authority during an emergency. We should not have to wait yet another year to get this done. As always, time is of the essence.
Response by Tennessee Stands