State AG opinion: Gov. Bill Lee can force big Tenn. cities to restart their economies

Apr 28, 2020

Tennessee Attorney General Herbert Slatery III
Credit tn.gov

NASHVILLE, Tenn. (Mike Osborne) -- The Speakers of the Tennessee House and Senate have received an opinion by the State Attorney General that fellow Republican Gov. Bill Lee does have the authority to force the state’s largest cities to open pandemic idled businesses.

The governor issue an order April 24 permitting restaurants and retail outlets to re-open for business in much of the state this week. However, Lee's order specifically allows Metro Nashville and five other large-population counties to continue pandemic closures if they choose to do so.

Senate Speaker Randy McNally and House Speaker Cameron Sexton recently asked State AG Herbert Slatery for an opinion on the issue. The question reads,

“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?”

Slatery released his opinion on Monday, saying the governor does have the power to force every county to abide by his orders. The opinion reads in part "the local health department or other local governmental entity may not take any action inconsistent with the Governor’s executive orders."

However, the AG also noted that the governor can choose to delegate his authority during statewide emergencies, writing "The governor is authorized to delegate such powers as the governor may deem prudent."

Nashville and Memphis have their own departments of health and are taking a more cautious approach to restarting their economies. Leadership in both cities insist they will keep businesses closed until they are certain coronavirus cannot rebound.

A similar political tug of war developed mid-April in Republican ranks around the question of abortion. Gov. Lee's original pandemic order placing a moratorium on non-essential medical procedures did not include an explicit reference to abortion. 

However, the Associated Press later used public records to show how conservative lawmakers and abortion opponents pressed Lee to make the order explicit. Days after he did so, a federal judge overturned the directive and an appellate court affirmed the decision last week.