NASHVILLE — As his fellow Republicans in the General Assembly continued filing bills in advance of Wednesday's special session to battle local and federal COVID-19 mandates — including an attempt to prevent the use of vaccine "passports" — Tennessee Gov. Bill Lee spent part of his Tuesday 140 miles away in Chattanooga.
"I'm not making recommendations to them," said Lee, who earlier spurned requests from Republican House Speaker Cameron Sexton and Lt. Gov. Randy McNally, the Republican Senate speaker, to call the legislature into the special session.
The speakers sought to have Lee call the special session addressing COVID-19 mandates imposed by local government, school boards and businesses, so the governor could frame the issues. Instead, lawmakers had to go through the rare process of calling themselves into session.
"I think I've been pretty clear about my focus and my effort," said Lee, who attended the Chattanooga area leadership prayer breakfast. "We will push back against the federal mandates because I think they're not good for our state, they're not good for the people. But we'll see what the legislature does."
The governor's avoidance in calling the special session himself — it was called when all House and Senate Republicans signed on to establish it — has left some legislative leaders quietly frustrated.
Kent Syler, a political science professor at Middle Tennessee State University, said special sessions of this type pose "something really of a high risk."
"It's certainly designed to play to the Republican base, the most conservative part of the conservative base. And the timing of it probably has to a lot to do with Republican primary politics," Syler said.
"Gov. Lee has been in somewhat of a tough position on the COVID issue for several months now, trying not to anger the most conservative part of the Republican base and at the same time effectively battle COVID," Syler said of the governor, who is up for re-election in 2022. "He doesn't want a challenge from his right either, so it's really somewhat of a political risk for him. The whole thing is intra-Republican politics."
After Lee turned down Sexton and McNally's request, the speakers initiated a rarely used procedure — it's only been done successfully twice in Tennessee history — and got all House and Senate members of the GOP's supermajority to call themselves into special session. They easily reached the two-thirds requirement for such a call.
That effort was aided considerably by a bill passed earlier this year by Sen. Bo Watson, R-Hixson, and Rep. Patsy Hazlewood, R-Signal Mountain. Instead of requiring legislators come to the state Capitol in Nashville to sign a piece of paper, it provided for electronic signatures. The House made extensive use of the change.
"I think the legislative branch, we're just very serious about taking on our full responsibilities," Hazlewood said in a telephone interview. "It doesn't mean that we're at cross purposes with the administrative branch or the judicial branch."
Hazlewood said the legislative branch is a co-equal of the governor and the judicial branch.
"So I think some of this is about, sort of, establishing that level of equality or making sure that that equality is there," she said.
House Republicans have filed at least 29 bills, while Senate GOP members have so far filed six.
The list of bills includes stripping local school boards of their ability to require that students wear masks and putting the state's six independent county health departments under the county mayor's authority.
There are other bills that seek to punish businesses and employers who require their employees to receive COVID-19 vaccinations or who feel they must follow the Biden administration's proposed rule requiring larger companies to see that their employees are vaccinated or tested weekly.
Several bills create legal causes of action for aggrieved employees over the mandates, raising alarms in Tennessee's business community.
One bill bars public K-12 schools and public universities from conducting contact tracing and keeping out of school any asymptomatic person who may have been exposed to the potentially deadly virus.
Asked about the governor's refusal to call lawmakers into special session, Laine Arnold, Lee's communications chief, pointed to recent comments by the governor: "Our partners in the legislature understand that we are all working to limit federal overreach and help Tennesseans get on with their lives."
Former Tennessee Supreme Court Chief Justice William Koch, a Republican, said he has been keeping up with news accounts of some of what GOP lawmakers are contemplating but has not seen any of the actual bills.
Koch pointed to one source of Republican agitation: Three federal judges in Tennessee have blocked Lee's executive order allowing parents to override local school district mask mandates for their children. Parents and disability advocates have sued to stop Lee's action, saying his order makes their children unsafe in schools.
"I do think that the notion that a state legislature can somehow block a federal court is a nonstarter," Koch, president and dean of the Nashville School of Law, said in a Tuesday telephone interview. "That is something that simply can't be done."
State efforts to block federal actions on vaccination requirements are also problematic, Koch noted.
"In our federal system, we have the Supremacy Clause of the U.S. Constitution that basically says when a state law is inconsistent with a federal law, the federal law wins," Koch said. "Period."
Efforts to "nullify" federal actions are going to be a "legal nonstarter," Koch said.
Regarding Lee's effort to avoid getting pulled into fellow Republicans' COVID-19 session, MTSU's Syler pointed to something he found while researching passage of the Federal Aid Highway Act of 1956. The legislation was sponsored by then-Sen. Albert Gore Sr., D-Tenn. It failed in Congress in 1955 and there were efforts to draw in President Dwight D. Eisenhower.
"The special session might be necessary — but calling it could be at the cost of the sanity of one man, named Eisenhower," Eisenhower wrote.
There was no special session, and the transformative bill passed the following year during the regular session.
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