Misrule of Law

The John Birch Society-type wing-nuts seek to kneecap Tennessee’s crusading AG by tethering him to their crackpot theory of the U.S. Constitution. Worse, the bill would declare that President Trump’s executive orders are lawless diktats.

Thanks to the Tennessee Star (here)!

In a shocking development, Sen. Janice Bowling’s thrice-defeated “Restoring State Sovereignty Through Nullification Act,” re-introduced this year as SB 479/HB 441, has been abruptly amended to eliminate the controversial “nullification” provisions that I testified against in last year’s “summer study” hearing, to focus instead on micro-managing the Tennessee Attorney General’s “Strategic Litigation Unit.” The SLU is the division of the Hon. Jonathan Skrmetti’s office that (according to the AG’s website)  “handles complex affirmative litigation and defends the separation of powers and constitutional rights of Tennesseans.” The amended language is apparently retaliation against General Skrmetti for having issued a carefully-reasoned legal opinion in 2024 (at the request of Sen. Richard Briggs) that (correctly) concluded that a prior version of the nullification bill was unconstitutional.

General Skrmetti’s SLU is a stalwart—and highly effective–defender of federalism, yet the amendment to SB 479, if passed, would force his office to adopt a discredited, fringe theory that rejects the legitimacy of over 200 years of Supreme Court caselaw. Senate Bill 479, as amended, would command the SLU to disregard stare decisis (the practice of following Supreme Court precedents) and other controlling legal authorities, even though the SLU frequently litigates in federal court, where such authorities are treated as “the law of the land.”   The SLU is directed to ignore everything the Supreme Court did since John Marshall was appointed Chief Justice in 1801. Instead, the SLU would be limited to considering such ersatz sources as principles of “natural law,” hoary interpretations of the English Constitution, and the cacophony of state ratifying conventions in the late 18^th century.

This is simply daft, as well as attempting to usurp the Attorney General’s role as the state’s chief legal official and constitutional advocate. Ordering the state’s Attorney General to pursue frivolous legal arguments is like directing the Mayo Clinic medical staff to treat patients with patent medicines and blood-sucking leeches. Why not also require the AG to consult Ouija boards, crystal balls, and tarot cards?  

Even more bizarrely, SB 479 seeks to negate the historic re-election of President Trump, and would impede his much-needed MAGA agenda, by denying the executive branch (i.e., the Presidency) the authority conferred upon it by Article II of the Constitution. The “findings” contained in SB 479 proclaim that the executive (i.e., the President) has no lawmaking authority, and that “contrary to popular opinion, federal executive orders…are not laws at all.” Section 3(7) (emphasis added). This bill expressly states that President Trump’s executive orders constitute a “usurpation of powers”! This sounds like a blue state tantrum protesting President Trump’s courageous and much-needed reforms, not a serious proposal by Republican legislators in an overwhelmingly red state. Whose side is Sen. Bowling on?

No wonder Gov. Bill Lee is opposed to SB 479. Sadly, deluded (or opportunistic) activists on the right support the bill as part of their reflexive (and short-sighted) opposition to the state’s GOP leadership. Rabble-rousing does not constitute leadership, and rank demagoguery does not qualify as statesmanship.  

I have written about the original nullification bill at length (links above), and will not repeat those arguments here. Suffice it to say that Sen. Bowling’s “state sovereignty” bill is the handiwork of an obscure, undistinguished estate planning lawyer from Greeneville, Tennessee, Jeff Cobble, with no credentials as a legal scholar or constitutional expert. At last year’s “summer study” hearing, the only witnesses defending Sen. Bowling’s quixotic (and thrice-defeated) bill (then numbered SB 2775) were the aforementioned Mr. Cobble and a non-practicing former attorney (whose bar status is “suspended”), [1] now affiliated with the fringe John Birch Society, “Dr.” Joe Wolverton.

No serious legal scholar, on the left or right, agrees with this crackpot point of view.

Messrs. Cobble and Wolverton made news at the “summer study” hearing by declaring that most federal programs enacted in the past century are unconstitutional “usurpations,” and risibly claiming that America’s law schools teach a “false” version of constitutional law. As reported in the Tennessean, I responded that:

“Nullification is secession light,” East Tennessee lawyer and writer Mark Pulliam told the panel. “Constitutional conservatives should not be embracing such reckless rhetoric.”

Understandably, SB 479 jettisons the unsound (and unconstitutional) nullification provisions. However, instead of withdrawing the flawed bill altogether, Sen. Bowling has made it even worse. Retaliating against General Skrmetti for telling the truth about nullification is unseemly and outright dangerous.

With the latest amendment to SB 479, Sen. Bowling’s misguided nullification bill has gone from silly and futile to malicious and harmful. Stripping the Tennessee Attorney General of his judgment and ability to advocate effectively in constitutional matters (by forcing him to adopt eccentric views rejected by mainstream legal scholars and historians) for vindictive reasons would make Tennessee a national laughingstock. Moreover, the bill, if passed, would help the left undermine President Trump by calling into question his executive branch authority under Article II. The “unitary executive” theory of Presidential power was championed by the brilliant Supreme Court Justice Antonin Scalia, recognized as the father of modern originalism, the leading mode of constitutional interpretation.

How pathetic that a couple of mediocre far-right hacks have the ear of a Tennessee legislator, who is demeaning the General Assembly with a despicable effort to knee-cap the Tennessee Attorney General and undermine President Trump.

The Senate Committee on State and Local Government will hear SB 479 on March 11, 2025. Will the legislature have the wisdom (and courage) to inter this atrocious bill once and for all? The House version of this Trojan Horse bill was sponsored by Rep. Bud Hulsey, with co-sponsors including Rep. Jason Zachary, who should know better.

The timing of this last-minute bait-and-switch amendment is suspect. The motive for targeting General Skrmetti—Tennessee’s most principled and capable official—is even more suspect. True “constitutional conservatives” will reject this abomination.

Footnote

1. According to the Board of Professional Responsibility of the Tennessee Supreme Court, “suspended” status means “not in good standing and cannot practice law in Tennessee.”