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Legislature’s Ad Hoc Committee on Emergency Powers Made Reform Recommendations That May Not Go Into Effect for Six Years
December 2, 2020 Laura Baigert
A joint Ad Hoc Committee to Study Emergency Powers in a meeting held Tuesday agreed to pass along their recommendations for reforming Tennessee law regarding the declaration of a state of emergency and powers granted to the executive branch during such emergency.
Of note is that the agreed-upon reforms are not recommended to go into effect until the current administration leaves. Additionally, the recommendations do not address the constitutionality of current state law.
As established in July by the respective speakers in the wake of the COVID-19 pandemic, the bi-partisan joint committee consists of five state senators and 12 state representatives, with a co-chair and vice-chair from both the upper and lower chamber.
The ad hoc committee met twice previously in August and September to hear expert testimony on Tennessee’s Emergency Powers Act as written in T.C.A. 58-2-107.
As stated in the previous meetings through the testimony of several experts, Tennessee’s legislature has basically given the governor a “blank check” with gubernatorial powers that are “virtually unchecked” in terms of legislative oversight once the governor has declared a state of emergency.
In fact, T.C.A. 58-2-107 recognizes the governor’s responsibilities to address dangers associated with emergencies, but then goes on to authorize the governor to delegate direct operational control over all or any part of the emergency management functions within the state.
And, the law states, the governor has the authority to issue, amend and rescind executive orders, proclamations and rules that have the “force and effect of law.”
This, despite the fact that Tennessee’s Constitution in Article I, Section 1 and 2 is very strict in addressing Distribution of Powers.
Section 1 states, “The powers of the government shall be divided into three distinct departments: legislative, executive and judicial,” and Section 2 reads, “No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.”
At the third and final meeting, held Tuesday after a cancellation from September 17, the committee considered recommendations that will be reported to the speakers prior to the start of the 112th General Assembly in January, in accordance with the committee’s charge.
House Co-Chair Jason Zachary (R-Knoxville), offering background on the development of the House recommendations, said that consideration was given to the expert testimony from the first two meetings, their own independent research from organizations such as the National Conference of State Legislatures and suggestions from committee members.
Senate Co-Chair Ferrell Haile (R-Gallatin) concurred with Zachary that while the two didn’t always agree they had a good working relationship and are basically on the same path with their respective recommendations.
The topics being addressed in both sets of recommendations include:
- Separation of categories from health-related disasters from other disasters through an additional chapter or part to title 58 in Tennessee’s code, leaving intact the current provisions. The Senate version would have the same protocols in place if a health-related disaster was declared in conjunction with any other type of disaster.
- Length and extension of orders would be set at a specific number of days for an initial order, which is currently set at 60 days with extensions renewed at will by the governor. The House would keep the health-related state of emergency also at 60 days, while the Senate would set the initial order period at 100 days. Both versions would require extensions to be approved by the General Assembly. With the House version calling for extension to be done by joint resolution, a legislative council would be established for when the legislature is not in session. The Senate version stipulates that the governor would have to call a special session of the General Assembly to deal with extensions.
- Ending or amending orders would be a new provision to Tennessee law included in the House and Senate recommendations, which allows the legislature to end a state of emergency at any time by passing a joint resolution. When not in session, the House would have the legislative council issue a “stay,” while the Senate proposes the legislature calling a special session through the currently available two-thirds signature process and subsequently passing a joint resolution.
- Notification relative to the issuance of executive orders must be made to the General Assembly in both versions, although the House and Senate versions differ slightly in the notice period of 24 versus 24 hours, respectively.
- Reporting requirements from the Senate include a fiscal assessment of anticipated expenditures and review by the Fiscal Review Committee and Finance Ways and Means Committee. The House recommends requiring bi-weekly reports to the Government Operations Committee from the Department of Health.
- Under other issues, both the House and Senate recommend that any law not go into effect until after the current administration leaves. With two years remaining of the current term and the potential for a second term like the last five Tennessee governors, it could be as long as six years before the emergency powers issue is addressed. The Senate also recommends that all contracts and bids entered into during the state of emergency be reviewed and audited by the comptroller and submitted to the Finance, Ways and Means Committees. All emergency powers related bills filed by the ad hoc committee co-chairs are expected to be grouped and scheduled on the same calendar once the General Assembly is back in session.
Haile, in keeping with his previous statements reflective of a protracted process, said that after the Judiciary Committees of both chambers study the matter their recommendations be made by January 1, 2022 – more than a year from now.
The meeting lasted just over an hour, with most of that time consumed by the co-chairs explaining the recommendations to be presented for their respective chamber.
During discussion, though, Representative Johnny Shaw (D-Bolivar) expressed concern over the futility of creating legislation, when it is not known what the next pandemic will be. He was also gently critical of those members who had not been following health officials’ recommendations to wear a mask, the implication being that that’s why the state of emergency continues on.
That sentiment ignores the executive orders put in place at the end of March that for the first time identified “essential” and “non-essential” activities and put in place stay-at-home orders for an initial 14 days with a goal to “flatten the curve.”
Those orders were then extended to 30 days, and it is now 246 days later with some Tennessee counties still restricting activities and requiring masks.
As Representative John Ragan (R-Oak Ridge) pointed out to his colleagues, if this had been a pregnancy, they would be diapering the baby by now.
In his research on the use of the term emergency in Tennessee code, Ragan said there were over a dozen and they were all related to a sudden and unexpected occurrence that demanded immediate action.
Ragan mentioned a recent daily COVID-19 briefing from the Department of Health and the noteworthy statistic that 85 percent of deaths in the state occurred in those over 61 years of age and that ICU bed capacity is still in a red zone.
While the situation may have been an emergency at its outset, Ragan said that an emergency that lasts 10 or 11 months means that the legislature didn’t take action when they should have. Conversely, if the situation is no longer an emergency and has become routine, Ragan says then the General Assembly needs to be involved.
He pointed out that rural hospitals that had both ICU and floor beds have been shut down and questioned why they hadn’t been reactivated. Over the nine months, Ragan also said a new hospital could have been built.
While Ragan’s points and questions went unanswered, perhaps it was one of his other statements that directly addresses the issue.
As Ragan understands it, “the federal government is doling out money based on being in a state of emergency.”
For the upcoming legislative session, Zachary has filed HB0007 for the 112th Tennessee General Assembly establishing that the county mayor, and not the county board of health or its director in those counties with one, shall have the exclusive authority to establish health policies that affect the entire county. The bill has yet to get a Senate sponsor.
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