The pushback begins

Tennessee Gov. Bill Lee reversed course Wednesday on his plan to keep barbershops, hair salons and other “close-contact” businesses closed through the month of May, telling state lawmakers that he intends to allow those businesses to reopen on May 6.

No specific details have been provided by the governor’s office, but are expected at his coronavirus media briefing on Thursday.

The move came less than 24 hours after Gov. Lee signed an executive order that left the forced closure of those businesses open-ended. While the final paragraph of the order left open the possibility that some or all of those businesses might open sooner rather than later, and that’s undoubtedly what the governor will lean on when he meets the press tomorrow, in an effort to save face, there was no set timeline for those businesses to reopen — even though gyms are going to reopen on Friday. The order is in effect until May 29, meaning that, conceivably, close-contact businesses could’ve been required to stay closed through the month of May.

That resulted in a groundswell of anger from small business owners, and pressure from state legislators, many of whom were feeling the heat in the communities they represent.

But before the governor could signal the reopening of those businesses, a district attorney general in southeast Tennessee let it be known that he would not prosecute any violation of the governor’s executive order, calling it a double-standard and unconstitutional.

Steve Crump, attorney general for Tennessee’s 10th Judicial District, which includes several counties in the southeastern corner of the state, outside Chattanooga, said in a statement that he has “great respect” for Gov. Lee but added “I cannot in good conscience, and with fidelity to my oath, allow what I believe to be unconstitutional criminal proceedings to take place.”

Crump pointed out that, under the governor’s order, close-contact businesses were reopening in Knoxville — meaning a barber there could go back to work, while barbers in his cities and towns would remain prohibited from working. He also pointed out that restaurants have been allowed to reopen while a group of more than 10 friends cannot meet in a park or private home for dinner.

“I do not believe that someone should be prosecuted in this district for trying to earn a living doing a job that is legal and ‘permitted’ just a few miles up the road,” he said. “Nor do I believe that the prosecution of 12 friends eating dinner together in a home in two groups of six should be prosecuted, while if they did the same thing in a restaurant dining room, they would be free of criminal exposure.”

Crump went on to say that prosecuting citizens under the governor’s executive order would undermine public confidence in the state’s judicial system.

“If I am to hold fast to the oath I took, I cannot prosecute an individual under these executive orders,” he said. “Indeed, the Tennessee Constitution demands that I not and oppose the prosecutions.”

“I also do not believe that our citizens will stand for such an outcome,” Crump added. “Many of our citizens are about to simply go back to work to save their livelihoods, their homes and their economic existence. They are about to ignore the executive orders. Therefore, I will not criminally enforce the executive orders on that basis. There cannot be two standards of criminal justice in this state. It is not constitutional, nor is it just.”

Two things should be pointed out:

One, Gov. Lee’s executive orders have not gone nearly as far as the restrictions that have been put into place by governors and mayors in some places outside Tennessee. He has said repeatedly that Tennessee needs to get back to work, and has consistently indicated that he prefers to allow Tennesseans to use their own judgment to keep them safe rather than mandating their actions.

Two, as I have pointed out previously, Gov. Lee has done a pretty good job of combatting this virus — despite all the flack he took early on for the perception that he wasn’t doing enough. Tennessee is leading the region in testing, which should not be understated. States like Kentucky are struggling to determine the scope of the outbreak, and unable to open any businesses because they have no data to work with, while Tennessee is holding drive-thru testing facilities for asymptomatic patients every weekend, and doing extensive testing in state prisons and elsewhere.

However, Gov. Lee has made a number of missteps during this crisis, seemingly because he relies heavily on an inner circle of advisors that, like himself, have limited experience in government. Reports coming from inside state government have revealed that Lee keeps even the most senior and influential Republican lawmakers at arm’s length, with little communication and seldom seeking their input. Lawmakers were shocked at his executive order on Tuesday that left the close-contact business closures open-ended; they were under the impression that those businesses would soon reopen.

In the scheme of this outbreak, those missteps may not be too critical. But in terms of Gov. Lee’s political future, they may be. Knox County Mayor Glenn Jacobs — former WWE wrestling star Kane, an ardent libertarian — is being pushed by a growing number of people as a primary opponent for Lee in 2022. Two years ago it would’ve seemed an extreme long-shot that Lee, who stunned the establishment by upsetting well-entrenched GOP favorites Diane Black and Randy Boyd in the 2018 primary, would be a one-term governor. But Lee eroded a good bit of his support with his push for school vouchers. That’s ironic because it is near the top of many conservatives’ wish lists. But it turned into an urban vs. rural debate that didn’t benefit him much. Now he hasn’t done himself any favors by alienating the state’s cosmetology industry.

Lee’s handling of the coronavirus outbreak is a damned if you do, damned if you don’t ordeal. Even though he hasn’t put into place actions that are anywhere close to those as restrictive as his Democrat counterpart in Kentucky, Andy Beshear, the actions he has implemented have angered conservatives — particularly libertarians. Any governor would’ve likely put those policies into place, and angered conservatives. It doesn’t help that he has Jacobs — an immensely popular political figure in East Tennessee at the moment — watching him like a hawk and speaking out when he feels it appropriate.

Meanwhile, what’s happening in Tennessee will only intensify, and spread to other states. That’s going to be interesting, too. Because while people are tired of being cooped up and ready to get back to work, the TN Dept. of Health announced 132 new coronavirus hospitalizations on Wednesday — easily the most in a single day since the outbreak began. Of the just over 1,000 people who’ve been hospitalized in Tennessee due to the virus, nearly 1 in 4 have entered the hospital in the past 48 hours.

Ben Garrett

Ben Garrett is a journalist from East Tennessee. He is publisher of the Independent Herald, a weekly newspaper serving the Big South Fork region of the Cumberland Plateau, with a sideline in website development and digital marketing. He is also an erstwhile blogger.

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