Bobbie Patray: Executive Orders, Emergency Powers and the TN Constitution

By Bobbie Patray

Good Morning,

Well this subject is a bit involved, but it is one that many Tennesseans are very interested in seeing addressed.

When the pandemic quickly gained a foothold in TN and across the nation, many governors, including our own, started issuing Executive Orders using ‘Emergency Powers’ to restrict what people could and could not do.  Then the citizen push back started.

In  April the respective Speakers of the General Assembly requested an Attorney General Opinion based on this Question:

“Because of the COVID-19 health crisis, the Governor has exercised his authority to declare a state of emergency in Tennessee and to issue a series of executive orders governing the state’s emergency response to the COVID-19 pandemic. Do these executive orders serve as the exclusive regulation of the State’s emergency management in response to the pandemic, and to what extent, if any, may local governmental entities take actions or issue orders that conflict with the Governor’s executive orders?”

They received their answer in the form of Opinion No. 20-07:  Governor’s Emergency Management Executive Orders .

It essentially said that what the Governor was doing was all right.

This entire debate pretty much revolves around Tennessee Code Annotated 58-2-107 .

To view the Tennessee General Assembly Ad Hoc Committee see link:

After I read all this, it occurred to me that the RIGHT question was never asked:  Is TCA 58-2-107 CONSTITUTIONAL????
Well, in my opinion and the opinions of others, portions are NOT! 

I started talking to some legislators about getting Constitutional attorneys involved to evaluate the TCA and make suggestions about amendments that would bring that section into Constitutional Compliance.

About that time the respective Speakers appointed the members of the Ad Hoc Committee to Study Emergency Powers. Links to the meetings are below.

Ad Hoc Committee to Study Emergency Powers    Aug 20, 2020    03h 41m
Joint Ad Hoc Committee to Study Emergency Powers

Ad Hoc Committee to Study Emergency Powers    Sep 3, 2020    03h 27m
Joint Ad Hoc Committee To Study Emergency Powers

A number of speakers in the hearings did address the need to look carefully TCA 58-2-107 and bring it into compliance with the TN Constitution, among other things.

In the brief meeting yesterday, which I attended, the Constitution was not even mentioned.

Ad Hoc Committee to Study Emergency Powers    Dec 1, 2020    01h 06m
Joint Ad Hoc Committee To Study Emergency Powers .

Laura has done a great job of writing up the meeting and I urge you to read every word!!

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.”


First, these are RECOMMENDATIONS, not the language in any proposed piece of legislation. We won’t know exactly what will be in the bills until they are filed.

Second, after hearing the recommendations, I anticipate that there will be  pieces of legislation introduced by individual members of the Ad Hoc Committee and/or other members of the General Assembly that will address the concerns before us including the Constitutional questions raised by the provisions of TCA 58-2-107.

Do ‘stay tuned’ because this is one of the most important issues that the General Assembly will address in 2021.  Tennessee Eagle Forum will be ready to make sure that you are fully informed and involved in the process, making sure that YOUR VOICES are heard.