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.

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.