Steve Crump and other district attorneys in Tennessee say they will not criminally or civilly enforce executive orders from Gov. Bill Lee, giving you a reliable guide for your actions as you decide whether to obey — or to live.
“While I do not believe that Governor Lee intended to act in an arbitrary fashion,” Mr. Crump says, “I do believe that the enforcement of the current orders would result in that very outcome. There is not a constitutionally sound cohesion between the acts allowed and the acts prohibited. That cannot be the foundation upon which a meaningful prosecution is built, and the institution of such a prosecution would undermine public confidence, rather than cultivate it. I cannot allow that to occur.
Executive orders, for them to be as constitutional as the governor insists, must be understood as applying law to executive agencies only, and to be suggestion and persuasion on everyone else.
“It’s very clear the executive orders are constitutional,” the governor says. “And that they’re intended in this particular instance to provide for public safety and to protect Tennesseans and to make decisions that will ensure the health and safety of our citizens. That’s why they’ve been made.”
Steve Crump’s statement is a model of legal analysis. Sharing his perspective are Craig Northcott of Tullahoma in the 14th judicial district, Bryant Dunaway of Cookeville in the 13th and Brent Cooper of Columbia in the 22nd.
Power exists — in commerce, over agencies
The governor, as we point out, has authority over people through commerce. That is to say, he operates into the state and into the state economy through executive agencies that regulate privileged activities within the state.
A privileged activity is a state-owned area of the economy controlled by regulation upon state privileges — licenses and permits.
If you are not exercising a state privilege and not on the state payroll, you are not liable for any performance nor have any duty to perform, it would appear. You have no known duty and are under no legal liability, the dissenting DAs indicate.
And Steve Crump also suggests in his statement on Facebook, reposted on this website.
The state’s economy has taken at least a F$5,000,000,000 (that is F$5 billion) hit in losses because of the governor’s actions intended to limit the spread of the season’s flu, CV-19.
Widespread compliance shows the high level of respect for and fear of these officials the people have. They have listened to officials, and have put their lives on hold for seven weeks. The state economy, the national economy, are in ruin, with national GDP likely to fall up to 50 percent this year.
Mayor Andy Berke in an initial executive order banned all “travel.” He didn’t ban transportation, but travel — travel being the movement of people in their bodies, property and effects from one geographical location to another. Like Gov. Lee, he has reached past an area of the economy he can regulate and sought to touch the activities of the people in their private lives.
Like Mr. Lee, Mayor Berke has delegated authority over transportation. The state executives have authority to regulate carriers for hire. A carrier is in either of two categories — a common carrier, or a private carrier. These people make a profit and gain in carrying goods or people for hire.
Messrs. Lee and Berke do not have authority over anyone who merely travels, even if that person has a driver license.
A private person who has a driver license may have one based on mistake. He may have one based on error and ignorance. He may have one to be “commerce ready.” One has the most common form of driver license, Class D, to be able to carry someone or something for hire as a private carrier.
On any given day one may be traveling “on” the license; one may be carrying good or person for hire. For most Class D licensees, I’m willing to believe, use of the road is always private, never for hire. In other words, most Class Ds are private users, not involved in transportation (for hire).
Reliable source of information
The governor and mayor are acting outside their authority, and if the governor says his orders are constitutional, that means he has done nothing and is doing nothing to offend the exercise of any constitutional right. Free communication (travel) is one of these rights. Free movement of one’s person, papers and effects is a right by which one exercises myriad other rights.
So you should take Steve Crump’s statement as a true statement of the law. As an attorney, Mr. Crump is a judicial officer, a judge, effectively. What he says shouldn’t be ignored.
Mr. Crump is giving a good analysis of the legal situation, and I would say: Inform yourself in good faith of the legal landscape, look at the constitution, note your liberties, and go ahead and open your business full-bore.
The officials have no authority to stop you, and no basis upon which to sue you civilly or charge you criminally.
If you sought and obtained legal advice about your business and activities, or gleaned legal advice that is published, you prevent yourself from acting with mens rea, or criminal intent. Reading DA statements informs your intent, and allows you to say you have no guilty intent, and cannot charged with any crime.
Be bold. Get going, sir, ma’am.