Senator Joey Hensley, MD: Tennessee 28th District Capitol Hill Week in Review

General Assembly stands up to condemn Biden Administration’s federal overreach during Special Session on COVID-19 issues

The Tennessee General Assembly adjourned the Third Extraordinary (Special) Session of the 2021 legislative year on October 30 after tackling a number of important issues regarding state and federal response to COVID-19. Last week we looked at the comprehensive legislation addressing mask, vaccine and quarantine mandates. In the second part of this two-part series, we will look at other bills passed before adjournment, including a resolution calling on the Tennessee Attorney General to fight unconstitutional mandates coming from the federal government.

On September 9th President Biden made an announcement regarding his executive order requiring COVID-19 vaccines for federal employees and contractors and instruction to the federal Occupational Safety and Health Administration (OSHA) to likewise develop a rule applying the mandate to employers with more than 100 employees. On November 4th, OSHA issued those federal rules which are expected to affect more than 100 million Americans.

The resolution passed by our General Assembly during the Special Session asserts that “it is the right of the Tennessee General Assembly to enact such legislation as it deems necessary to nullify actions taken by the federal government regarding COVID-19 when those actions violate the United States Constitution.” I am very pleased to report that the lawsuit has been filed by Tennessee and six other states contending that the mandate prohibits the rights of sovereign states.

In other action taken during the special session, the General Assembly passed legislation which allows the Tennessee Attorney General and Reporter (AG) to petition the court to appoint a district attorney pro tem in cases where the elected district attorney general preemptively and categorically refuses to prosecute all instances of a criminal offense without regard to the facts and circumstances of the case. The State Constitution already provides for the court to appoint a pro tem in such cases. Senate Bill 9008 allows the AG to have a role in that process to better ensure the State Constitution and the laws of Tennessee are followed.

Unfortunately, Tennessee has seen some cases where a local district attorney who disagrees with the merits of the law feel they have the authority to decide whether or not to execute their duties without regard to the facts. This legislation aims to ensure that in these cases it is very clear that it is not up to a district attorney general to decide which laws are valid and which are not.

The General Assembly also voted during the Special Session to allow local political parties to call for primary elections for school board members to provide greater transparency regarding a candidate’s political philosophy. Currently, partisan elections of school board members are prohibited by law. Senate Bill 9009 is permissive, leaving the decision up to local party officials.

The vast majority of elected offices in Tennessee are primary-based partisan elections. Under the Special Session legislation, school board members would have the freedom to identify as a Republican, Democrat, Independent, or any other political party they may choose in the case the local party has petitioned for a primary election.

The General Assembly acted during the Special Session to bring more transparency and accountability to the process of the Governor issuing executive orders. Senate Bill 9012 shortens the length of time a Governor’s executive order can be in effect from 60 to 45 days. Under this legislation, if the Governor sees a need for an executive order to extend longer than 45 days, he/she can reexamine the order and reissue it. The change will require the Governor to more frequently justify why the order is needed.

Finally, legislation was passed before adjournment of the Special Session setting statewide standards for local health departments’ authority. Upon declaration of a pandemic by the World Health Organization (WHO) or the Centers for Disease Control and Prevention (CDC), the bill gives the governor exclusive jurisdiction to direct local health departments until he/she declares it no longer significantly impacts the state. Senate Bill 9013 prohibits state and local health officials from superseding, vacating, or refusing to comply with the governor’s executive orders or directives.