As most people probably know, our state legislators and the governor take an oath to uphold both the Tennessee and US Constitution. Per Article X, Section 1 of the Tennessee Constitution:
Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof , shall, before entering on the duties thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office.
I ______________do solemnly swear that, as a member of this, the One Hundred Thirteenth General Assembly of the State of Tennessee, I will faithfully support the Constitution of this State and of the United States, and I do solemnly affirm that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State. So help me God.
The Governor takes the following oath:
I,________________, do solemnly swear that as Governor of the State of Tennessee, I will support the Constitution of the State of Tennessee and the Constitution of the United States, and that I will perform with fidelity and faithfully execute the duties of the office of Governor to which I have been elected and which I am about to assume, to the best of my skill and ability. So help me God.
So they are to defend the rights of their constituents in accordance with both state and federal constitutions. And while people can and do have different understandings on what the constitutions mean, recent history tells us that the vast majority of Republicans in the Tennessee General Assembly claim to believe in the 10th Amendment to the U.S. Constitution and the clearly implied idea of nullification of unconstitutional federal actions.
The proof that they claim to believe in that is found in the vote of HJR9005/SJR9005 as amended in late October of 2021 (www.capitol.tn.gov/Bills/112/Bill/SJR9005.pdf.) Note: The Senate adopted House Amendment 9023 and that is the language passed.). Most of the current members were in the legislature then.
This resolution was sponsored by House Speaker Cameron Sexton and LT Governor Randy McNally. Looking at the record posted on the state site, almost all Republican senators and representatives present that day voted for the resolution. Both resolutions had numerous co-sponsors. The only recorded “no” votes came from liberal Democrats. However, Governor Lee refused to sign the resolution.
This resolution was in response to federal overreach during the government-created COVID crisis.
Some of the issues cited were presidential executive orders mandating COVID-19 vaccinations of federal contractors and subcontractors, forcing healthcare workers to get vaccinated if the their facility treated MEDICARE or MEDICAID patients, and attempting to force OSHA (Occupational Safety and Health Administration) to require routine testing for employers with more than 100 people, to name a few.
The response in the resolution is clearly based on the Federalism upon which our nation was founded.
Here are just a few examples:
WHEREAS, federalism is described and analyzed in Bond v. United States, 564 U.S. 211 (2011), in which the United States Supreme Court declared that the federal system rests on the insight that “freedom is enhanced by the creation of two governments, not one”; and
WHEREAS, the Court further stated that this freedom is enhanced “first by protecting the integrity of the [two] governments themselves, and second by protecting the people, from whom all governmental powers are derived”; and
WHEREAS, federalism serves “to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-a-vis one another . . . [and] preserves the integrity, dignity, and residual sovereignty of the States”; and
WHEREAS, this federal balance “ensure[s] that States function as political entities in their own right”; and
WHEREAS, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake”; and
WHEREAS, the United States Supreme Court in National Federation of Independent Business (NFIB) v. Sebelius, 567 U.S. 519 (2012), further analyzed federalism and the Tenth Amendment to the United States Constitution; and
WHEREAS, the Court acknowledged that a government’s “police power” is the general power of governing, possessed by the states but not by the federal government as the federal government only possesses enumerated powers listed in the United States Constitution; and
WHEREAS, the Constitution’s express conferral of some powers for the federal government makes clear that it does not grant others, and the federal government can exercise only the powers granted to it; and
WHEREAS, the independent power of the states serves as a check on the power of the federal government; by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power; and
WHEREAS, the announced executive orders and COVID-19 Action Plan are attempts by the federal government to coerce the State of Tennessee and its citizens in violation of both the United States Constitution and the Tennessee Constitution; and
WHEREAS, each member of the General Assembly has taken an oath to uphold the Constitution of Tennessee and the Constitution of the United States; and
WHEREAS, if the federal government intends to overreach its authority to the point that it assumes the traditional constitutional role of a state legislative body, it is only fitting and proper that the very existence, as well as the depth and breadth, of this federal power be condemned and challenged not just in a court of law, but also through actions of the General Assembly to nullify such federal overreach; now, therefore
Before we cover what the legislature resolved to do, it’s important to note some key points the established up to this point in the resolution.
The authority of the federal government is limited to the enumerated powers listed in the US Constitution. (That is true even though the federal government regularly exceed their legitimate powers.)
The independent power of the states was designed to serve as a check on the power of the federal government.
That check on power is not limited to public condemnation and court challenges where one branch of the federal government gets to decide the limits of power of another branch of the federal government over the state(s) “but also through actions of the General Assembly to nullify such federal overreach”.
Yes, they used the “N” word, nullify – a word of which we should all cheer the use, and even more so, real action by our state against federal overreach.
They identified the actions that were a violation of the U.S. and Tennessee Constitutions – in this case, executive orders and the COVID Action Plan.
Last but not least, they stated “each member of the General Assembly has taken an oath to uphold the Constitution of Tennessee and the Constitution of the United States”.
BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ONE HUNDRED TWELFTH GENERAL ASSEMBLY OF THE STATE OF TENNESSEE, THE SENATE CONCURRING, that the State of Tennessee condemns any attempt by the federal government to penalize citizens of this State in an effort to enforce an unconstitutional mandate regarding COVID-19 vaccinations or other COVID-related restrictions and requirements.
BE IT FURTHER RESOLVED 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.
BE IT FURTHER RESOLVED that the Tennessee General Assembly urges the Attorney General and Reporter of the State of Tennessee to initiate or intervene in one or more civil actions on behalf of the State of Tennessee or, in the alternative, seek appropriate relief in a federal court of competent jurisdiction regarding COVID-19 mandates issued by the federal government, and any actions taken by the federal government, including the President of the United States, the head of any department or agency, or any other employee of the executive branch of the federal government, in violation of federal law or as prohibited by the Tenth Amendment to the United States Constitution, or any other statutory or constitutional provisions of the United States or the State of Tennessee, with respect to the implementation or enforcement in this State of any provision of the federal government’s mandate that requires citizens of this State to either receive a COVID-19 vaccination or submit to routine testing.
The key point made in the resolution is 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 when those actions violate the United States Constitution. In this case, the violations were due to policies and actions related to COVID-19.
The resolution also urges the attorney general to take legal action on behalf of the state.It references the 10th Amendment, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectfully, or to the people.”
While this resolution deals with COVID-19, the violation of rights and abuse of power could be any policy or practice by the federal government that violates the Constitution according to our state legislature.
Now, nearly 18 months later, the legislature has the opportunity – and many, including this writer, would say the duty – to enact legislation that establishes processes to nullify federal action when needed.
HB0726/SB1092 (https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0726 ) by Rep. Hulsey and Sen. Bowling does just that. The legislation creates more than one method of nullifying federal actions that violate the Constitution. It can be used to nullify federal overreach in the future and or to deal with ongoing actions that are unconstitutional. It, however, does not identify any specific federal action to nullify. It is a tool, a mechanism that every sovereign state should have ready to utilize when needed.
Furthermore, the intent of the legislation aligns perfectly with the resolution previously passed by both houses of our General Assembly. Unfortunately, Governor Lee not only refused to sign the resolution, he is on record as opposing HB0726/SB1092.
Apparently Lee cares more about federal funding than upholding his oath to the Constitution. Lee’s actions are contrary to his claim to support the 10th Amendment when he was running for office.
I encourage everyone to listen to Rep. Hulsey’s outstanding presentation of the bill:
Though resolutions have no teeth in and of themselves, they are intended to declare the belief, desire and intent of the legislature.
Our legislators have sworn an oath to uphold both the U.S. and Tennessee Constitutions. Many willingly signed the resolution clearly and accurately stating the limits of federal power, and the duty of the state legislature to intervene when the federal government exceeds that power. They have declared, and rightfully so, nullification as a legitimate and required remedy.
The importance of this legislation cannot be overstated. If it fails, our state is likely condemned to even more federal overreach and coercion. If it succeeds, then it is more likely that other states will be inspired by the Volunteer State and pass similar legislation.
Restoring our country requires returning to the limited government designed and intended by the Founders. DC will never fix DC. It is too far gone and corrupt. Only the states can restore our Republic and protect our rights.
Those who supported the resolution in October of 2021 sent the right message. We will soon know if they meant it.
What you can do!
The senate version of this legislation SB1092 is scheduled for the Senate State and Local Government Committee on Tuesday, March 14th. It has to get through this committee.
Please call the following committee members on Monday and ask them to support this legislation. Be polite. If there is no answer, leave a message. The committee hearing begins at 10:30 in Senate Hearing RM1.
Chairman Sen. Richard Briggs 615-741-1766
Vice Chair Sen. Page Walley 615-741-2368
2nd Vice Chair Sen. Mark Pody 615-741-2421
Sen. Ed Jackson 615-741-1810
Sen. Adam Lowe 615-741-1946
Sen. John Stevens 615-741-4576
Sen. Ken Yeager 615-741-1449
HB0726 will be in the State Government Committee on Wednesday, March 15th . The committee hearing begins at 10:30 in House Hearing RM 1.
Please call on Tuesday or early that morning.
Chairman Rep. Kelly Keisling 615-741-6852
Vice Chair Rep. Rick Eldridge 615-741-6877
Rep. Rebecca Alexander 615-741-2251
Rep. Rush Bricken 615-741-7448
Rep. Ed Butler 615-741-1260
Rep. Michelle Carringer 615-741-172
Excellent!