Governor Lee has exercised authority under the emergency powers statute per TCA §58-2-107. In particular, that state statute gives the governor, during times of emergency, the authority to issue executive orders with the “force and effect of law” and secondly, to delegate powers as he “may deem prudent.” We believe these powers to be unconstitutional per the Constitution of the State of Tennessee.
Art III, §10 of the constitution gives the governor the charge to see that the laws are “faithfully executed.” That certainly does not imply that the governor has the power to make new laws. Further, lawmaking authority is given in Art. II to the General Assembly and no other branch of the government. Art II, §2 states, “No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others…” In other words, the governor as a member of the executive branch of government may not assume the duties of the legislative branch of the government (i.e. lawmaking).
The Governor has delegated powers to county mayors to issue mask mandates in their respective counties. But Art VII, §1 of the constitution specifically states that for all county executives, “duties shall be prescribed by the General Assembly.”
These powers delegated to the Governor by TCA §58-2-107 while passed by the General Assembly in the year 2000, are therefore unconstitutional per the Constitution of the State of Tennessee.