Can the Tennessee General Assembly delegate emergency powers to the governor or another department, or does the state constitution's separation-of-powers clause forbid that?

Subject

Legislative Delegation of Emergency Power

Plain-English summary

A Tennessee state senator asked, in the wake of the COVID-era debate over governors' emergency authority, six related questions about what the General Assembly can and cannot hand off to other branches. The AG's answer maps onto a familiar separation-of-powers framework. The legislature owns lawmaking power and cannot give it away. But it can write a statute that tells an agency or the governor to administer a program (including in an emergency) and to write rules to carry that program out, as long as the statute supplies enough standards for courts and citizens to tell when the agency is implementing the statute and when it is making up new law. The Tennessee Supreme Court has called this the "sufficient standards or guidelines" test.

On emergency powers specifically: the General Assembly may delegate emergency authority to the governor as long as the delegated authority is executive (carrying out the statute) rather than legislative (deciding what the law is). The opinion also flags an open question Tennessee courts have not answered: whether the governor's constitutionally vested executive power inherently includes some emergency authority. Two narrow features of the Tennessee Constitution (Article III, Section 9 on convening the General Assembly in extraordinary occasions and Article III, Section 5 on the militia) do not block the General Assembly from creating emergency authority by statute.

What this means for you

For state legislators drafting emergency-powers legislation

The constitutional ceiling is the "sufficient standards or guidelines" test from Gallaher v. Elam and Bean v. McWherter. Statutes that confer broad authority "to do whatever the governor deems necessary" are at risk. Statutes that lay out triggers, scope, time limits, and review mechanisms (Tennessee's emergency provisions at § 58-2-107 have already survived trial-court review on those grounds, see Allen v. Lee) are more defensible. Build an intelligible principle into the text, even if the courts have set a low bar.

For the governor's office and emergency management agencies

Rules and orders issued under a properly crafted emergency statute are constitutional even if they have the practical "force of law," because Tennessee classifies rulemaking as administrative, not legislative. But that classification depends on the statute supplying real standards. If your enabling statute is vague, defending an order in court gets harder. Build a record showing you stayed within the statutory standards.

For lawyers challenging executive emergency action

The most common route is "the governor exceeded the statute," not "the statute is unconstitutional." Tennessee courts have rejected facial non-delegation challenges to § 58-2-107. A focused as-applied challenge ("this specific order goes beyond what the legislature authorized") is more promising than a frontal non-delegation attack.

For citizens worried about runaway executive power

The state constitution does not give the governor a free-floating crisis power. Whatever emergency authority exists must come from a statute that itself meets the separation-of-powers test, and the legislature can pull that authority back at any time. The Tennessee Supreme Court has not yet decided whether some emergency power inheres in the executive office itself, so this remains an open question. Advocacy on the policy side (statutory caps, sunset clauses, legislative review triggers) is where the action is.

For local governments

The General Assembly can also delegate emergency authority to local units. Two narrow constitutional exceptions to the non-delegation rule allow it: explicit constitutional text (like Article II, Section 29 on local taxation) and "immemorial usage" for municipal corporations and county courts on local matters.

Common questions

What did the senator actually ask?

Six questions. Whether the General Assembly may delegate "the power to make laws" (no, generally), whether it may delegate the power to make rules and regulations with the force of law (yes, with sufficient standards), whether it may grant emergency powers to the governor (yes, if executive rather than legislative), whether Article II, Section 2 forbids delegating emergency powers to other departments (no), whether Article III, Section 9 limits the governor's emergency action (no, it grants power to convene the legislature, doesn't restrict him), and whether Article III, Section 5 (the militia provision) blocks delegating non-militia emergency power to other departments (no).

What is the non-delegation doctrine?

The principle that the legislature, having been entrusted by the constitution with lawmaking power, cannot turn around and hand that power to anyone else. The Tennessee Supreme Court derives the doctrine from Article II, Sections 1 and 2 (separation of powers) and Section 3 (vesting of legislative authority).

What is the test Tennessee uses?

The "sufficient standards or guidelines" test from Gallaher v. Elam: a statute delegates authority validly if it contains enough standards for the agency and a court to tell whether the agency is carrying out the legislature's intent or making policy of its own.

Are there exceptions where the legislature CAN delegate lawmaking power?

Two, and they are narrow. First, when the constitution itself authorizes the delegation (for example, the legislature delegating the power to tax to counties under Article II, Section 29). Second, "immemorial usage" predating the constitution: long-standing practice of letting municipalities and county courts handle local matters.

What about COVID-era cases?

Tennessee chancery courts have rejected non-delegation challenges to § 58-2-107, the general state of emergency statute, citing the statute's built-in limits. See Allen v. Lee (2020). The opinion contrasts this with Michigan, where In re Certified Questions struck down that state's open-ended emergency-powers act as an unlawful delegation.

Does the Tennessee governor have inherent emergency power even without a statute?

Unsettled. Some scholars argue that emergency authority is inherent in executive power, which the Tennessee Constitution vests in the governor under Article III, Section 1. Other scholars argue that Article III, Section 9 (governor convenes the legislature on extraordinary occasions) implies the governor lacks unilateral crisis power and must call the legislature back to handle emergencies. The Tennessee Supreme Court has not yet weighed in.

Does Article III, Section 5 (the militia clause) limit emergency delegations?

No. That clause restricts when the militia can be called into service (only in cases of rebellion or invasion, and only at the General Assembly's declaration). It says nothing about non-militia emergency authority. The opinion traces the clause to a 19th-century reaction against perceived gubernatorial overreach by Reconstruction-era Governor William Brownlow, and reads it narrowly.

Background and statutory framework

Separation of powers in Tennessee

Article II, Section 1 of the Tennessee Constitution divides government into Legislative, Executive, and Judicial departments. Article II, Section 2 forbids any person belonging to one department from exercising powers properly belonging to another, "except in the cases herein directed or permitted." Article II, Section 3 vests "legislative authority" in the General Assembly.

The Tennessee Supreme Court has long read these provisions to forbid the General Assembly from delegating its lawmaking power. State v. Armstrong, 35 Tenn. (3 Sneed) 634 (1856); Underwood v. State, 529 S.W.2d 45 (Tenn. 1975). The court drew a line: the legislature cannot delegate "purely legislative" power (the choice of what the law shall be) but can delegate "the authority to implement the expressed policy of particular statutes." Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003); Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997).

Two constitutional exceptions

The Tennessee Supreme Court has recognized only two narrow exceptions to non-delegation. First, where the constitution itself authorizes a delegation, like Article II, Section 29 (taxation power conferred on counties and incorporated towns) or Article VII, Section 1 (chartered counties setting qualifications for their legislative members). Second, "immemorial usage originating anterior to the Constitution," which the court has applied only to delegations to municipal corporations and county courts on local matters. Kee v. Parks, 283 S.W. 751, 753 (Tenn. 1926); S. Constructors, 58 S.W.3d at 711 n.3.

The "sufficient standards" test

When the General Assembly delegates rulemaking authority, the statute must "contain sufficient standards or guidelines to enable both the agency and the courts to determine if the agency is carrying out the legislature's intent." Gallaher, 104 S.W.3d at 464. The Tennessee Supreme Court applied that test to uphold delegations in Gallaher (DHS rulemaking under federal child-support statute) and Bean (TWRA wildlife classification authority).

Emergency powers

Applying these principles, the AG concludes the General Assembly may grant emergency powers to the governor or another department, as long as the powers granted are executive (directing details of statutory execution) rather than legislative (deciding what the law shall be). The opinion notes that Tennessee chancery courts upheld § 58-2-107 against non-delegation challenges in COVID-era litigation, contrasting the Michigan Supreme Court's contrary result for that state's open-ended emergency act in In re Certified Questions, 958 N.W.2d 1 (Mich. 2020).

The "inherent executive emergency power" question

Article III, Section 1 vests "executive power" in the governor. Whether that includes inherent emergency authority is unresolved. The opinion canvasses scholarship on both sides (Rossi, Prakash, Lobel) and notes that the Tennessee Constitution's pre-Revolutionary roots and the Article III, Section 9 procedure for convening the General Assembly in extraordinary occasions both arguably "hint" at a weak gubernatorial crisis power, but no Tennessee case decides the issue.

Article III, Section 9 (convening the General Assembly)

This provision gives the governor the affirmative power to convene a special session in extraordinary circumstances. The AG reads it as expanding rather than limiting gubernatorial authority. It does not block legislative delegation of emergency power.

Article III, Section 5 (the militia)

This provision restricts militia call-up to rebellion or invasion, only at the General Assembly's declaration. Historically a 19th-century reaction to perceived gubernatorial overreach. The AG reads it as a narrow militia rule, not a cap on non-militia emergency delegation.

Citations

• Tenn. Const. art. II, §§ 1, 2, 3, 29
• Tenn. Const. art. III, §§ 1, 5, 9
• Tenn. Const. art. VII, § 1
• Tenn. Code Ann. § 58-2-107 (general state of emergency statute)
• Tenn. Code Ann. § 71-1-132(a)(1)
• Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003)
• Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997)
• S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706 (Tenn. 2001)
• Underwood v. State, 529 S.W.2d 45 (Tenn. 1975)
• State v. Armstrong, 35 Tenn. (1 Sneed) 634 (1856)
• Kee v. Parks, 283 S.W. 751 (Tenn. 1926)
• Bailey v. Shelby County, 188 S.W.3d 539 (Tenn. 2006)
• Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008)
• Estate of Bell v. Shelby Cnty. Health Care Corp., 318 S.W.3d 823 (Tenn. 2010)
• Walker v. Dunn, 498 S.W.2d 102 (Tenn. 1972)
• Gundy v. United States, 588 U.S. 128 (2019)
• J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928)
• Marshall Field & Co. v. Clark, 143 U.S. 649 (1892)
• In re Certified Questions, 958 N.W.2d 1 (Mich. 2020)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-013.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 13, 2024
Opinion No. 24-013

Legislative Delegation of Emergency Power

Question 1
Does the General Assembly have the authority to delegate the power to make laws to another department given the Tennessee Constitution prohibits the executive and judicial departments from exercising legislative authority under article II, section 2 of the Tennessee Constitution?

Opinion 1
Under the separation-of-powers doctrine established by article II, sections 1 and 2 of the Tennessee Constitution, the General Assembly generally cannot delegate its power to make laws, except in two narrow instances.

Question 2
Does the General Assembly have the authority to delegate to another department the power to make rules and regulations that have the force of law, including those that have general application to individuals or entities outside the department, given the Tennessee Constitution prohibits the executive and judicial departments from exercising legislative authority under article II, section 2?

Opinion 2
Yes. Although the General Assembly may not delegate its law-making power to an executive branch agency, it may delegate "the authority to implement the expressed policy of particular statutes"—i.e., executive power. That authority "include[s] the power to promulgate rules and regulations that have the effect of law in [an] agency's area of operation." The statute delegating the power to make rules and regulations "must contain sufficient standards or guidelines to enable both the agency and the courts to determine if the agency" is permissibly implementing the statute or unconstitutionally exercising legislative power.

Question 3
Does the General Assembly possess the authority to grant emergency powers to the governor under the Tennessee Constitution?

Opinion 3
Yes. The General Assembly can grant emergency powers to the governor under the Tennessee Constitution, so long as the power it grants is executive, not legislative, in nature. Moreover, the governor's constitutionally vested executive power may inherently include emergency power; if that is correct, then it would not offend the separation-of-powers doctrine for the General Assembly to grant the governor emergency powers beyond mere implementation since the Tennessee Constitution would already vest the governor with these powers.

Question 4
Does article II, section 2 of the Tennessee Constitution prohibit the General Assembly from granting emergency powers to another department of state government?

Opinion 4
No. See responses to Questions 2 and 3.

Question 5
Can article III, section 9 of the Tennessee Constitution, which grants the governor power only to convene the General Assembly on extraordinary occasions, be fairly interpreted to prohibit the governor from unilaterally acting in extraordinary occasions or emergency situations?

Opinion 5
No. Article III, section 9, of the Tennessee Constitution grants the governor affirmative power to convene the General Assembly in emergencies and other "extraordinary occasions." It does not limit his authority to exercise constitutionally delegated emergency authority or any emergency authority flowing from his constitutionally vested executive power.

Question 6
Can article III, section 5 of the Tennessee Constitution, which prohibits the governor from acting unilaterally in the case of rebellion or invasion but requires that the governor still defer to the acts of the General Assembly, be fairly interpreted to prohibit the General Assembly from delegating emergency powers to another department?

Opinion 6
No. Article III, section 5, limits the circumstances under which the State's militia may be called into service. It does not prohibit the General Assembly from delegating emergency powers to another department.

ANALYSIS

1.–4. Article II, section 1 of the Tennessee Constitution divides the powers of government into three distinct departments: Legislative, Executive, and Judicial. Article II, section 2 of the Tennessee Constitution provides that "[n]o 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." These two constitutional provisions, which were adopted in the 1835 Constitution, establish Tennessee's separation-of-powers doctrine. See State ex rel. Town of South Carthage v. Barrett, 840 S.W.2d 895, 897 (Tenn. 1992); State v. Armstrong, 35 Tenn. (1 Sneed) 634, 653–54, 658 (1856). The doctrine "prohibits an encroachment by any of the departments upon the powers, functions and prerogatives of the others." Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 843 n.8 (Tenn. 2008) (citation omitted).

A corollary of this doctrine is the principle that no branch may delegate its authority to another. Article II, section 3 of the Tennessee Constitution vests the State's "legislative authority" in the General Assembly—a power that encompasses "'the authority to make, order, and repeal . . . laws.'" Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975) (quoting Richardson v. Young, 125 S.W. 664, 668 (Tenn. 1910)). As with the vesting of the federal legislative power in Congress, "that assignment of power to [the General Assembly] is a bar on its further delegation." Gundy v. United States, 588 U.S. 128, 135 (2019); accord State v. Armstrong, 35 Tenn. (3 Sneed) 634, 654–56 (1856). And the separation-of-powers clause makes this even clearer: the General Assembly generally may not delegate "purely legislative" power. Gallaher v. Elam, 104 S.W.3d 455, 464 (Tenn. 2003).

The Tennessee Supreme Court has recognized only two narrow exceptions to this non-delegation principle. First, the General Assembly may delegate its legislative powers when the "Constitution itself authorizes the delegation." S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 711 n.3 (Tenn. 2001). This includes the General Assembly's constitutionally granted power to "authorize the several Counties and incorporated towns in [Tennessee], to impose taxes." Tenn. Const. art. II, § 29. Second, the General Assembly may delegate legislative power when it is "sanctioned by immemorial usage originating anterior to the Constitution and continuing unquestioned thereunder." S. Constructors, 58 S.W.3d at 711 n.3 (quoting Kee v. Parks, 283 S.W. 751, 753 (1926)). This exception has "only two" recognized applications—permitting the General Assembly to confer powers on (a) municipal corporations, and (b) county courts to govern "local matters." Kee, 283 S.W. at 753.

Although the legislative branch "may not delegate" the authority to make laws, the General Assembly may delegate "the authority to implement the expressed policy of particular statutes." Gallaher, 104 S.W.3d at 464. And the grant of such authority "may include the power to promulgate rules and regulations that have the effect of law in the agency's area of operation." Id. (citing Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1997)).

The Tennessee Supreme Court has established a "test" for determining whether the General Assembly has lawfully delegated power to an executive branch agency. "The test . . . is 'whether the statute contains sufficient standards or guidelines to enable both the agency and the courts to determine if the agency is carrying out the legislature's intent.'" Gallaher, 104 S.W.3d at 464 (quoting Bean, 953 S.W.2d at 199).

Applying these principles here, the General Assembly may grant emergency powers to the governor or another department of state government, so long as those powers are not legislative but executive in nature. No constitutional provision expressly justifies a delegation of emergency power to the governor or another department; nor does the "immemorial usage" exception apply, given that its applications involve delegations to local governmental units, not departments of state government. So the default non-delegation rule applies. In other words, if the General Assembly delegates no more than the authority to "direct[] the details of [an emergency statute's] execution," J.W. Hampton & Co., 276 U.S. at 406, then its delegation will pass separation-of-powers muster.

There is one significant caveat to this analysis. To our knowledge, the Tennessee Supreme Court has not determined whether the executive power itself—which the Tennessee Constitution vests in the governor, Tenn. Const. art. III, § 1—encompasses emergency power. Some scholars posit that emergency power is inherently executive. And if that's right, then it might not violate the separation-of-powers doctrine to grant the executive "discretion[ary]" power in emergencies since such matters would "already [be] within the scope of executive power" and thus would not represent an impermissible delegation of legislative authority. The legislative versus executive character of emergency power is—and has been—subject to disagreement, however.

Tennessee courts have dismissed recent suits alleging the general emergency statutory provisions unconstitutionally delegate power to the governor because, among other reasons, the provisions limit the governor's exercise of that authority in important ways. See Order 11-13, Allen v. Lee, No. 20-405-I (Davidson Ch. Ct. May 26, 2020), vacated as moot, No. M2020-00918-COA-R3-CV (Tenn. Ct. App. July 14, 2021) (holding Tenn. Code Ann. § 58-2-107 does not violate the separation-of-powers doctrine); see also Off the Wagon Tours, LLC v. Metropolitan Gov't of Nashville & Davison County, No. 20-0766-I (Davidson Ch. Ct. May 6, 2021). But see In re Certified Questions, 958 N.W.2d 1 (Mich. 2020) (holding non-time-limited delegation of power to Michigan's governor unlawfully delegated legislative power).

5. Article III, section 9 of the Tennessee Constitution, which grants the governor power to convene the General Assembly only on extraordinary occasions, cannot be fairly interpreted to prohibit the governor from unilaterally acting in emergencies. Article III, section 9's text does not expressly restrict the governor's authority; rather, it provides an affirmative grant of power. And section 9 places no limits on the General Assembly's power to grant the governor emergency power.

6. Article III, section 5, of the Tennessee Constitution does not restrict the General Assembly's authority to delegate emergency management powers to another department. Article III, section 5 limits the circumstances under which the militia "shall . . . be called" but does not speak to the General Assembly's power to delegate general emergency powers. To the contrary, the adoption of article III, section 5's second clause appears to have been a reaction to perceived gubernatorial overreach—not an attempt to limit the General Assembly's power. The second clause was added later in 1870—likely as a check on the governor's power to call out the militia without the General Assembly's consent and in reaction to the perceived abuse of that power by legendarily contentious Reconstruction-era Governor William Brownlow.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

VIRGINIA N. ADAMSON
Assistant Solicitor General

Requested by:
The Honorable Mark Pody
State Senator
425 Rep. John Lewis Way N.
Suite 754 Cordell Hull Building
Nashville, Tennessee 37243