Breaking news on this past Tuesday intimated, or in some cases, downright declared that the Tennessee Court of Appeals had ruled in favor of Governor Lee in a lawsuit regarding whether he had legally deployed the National Guard to Memphis. It is accurate to say that the court’s ruling was favorable to the Governor and the state, but it hinged on a legal technicality, rather than the merits of the case.
The three-judge panel found that the plaintiffs, Shelby County Mayor Lee Harris, State Senator Jeff Yarbro, State Representative Gabby Salinas, State Representative G.A. Hardaway, Shelby County Commissioner Henri Brooks, Shelby County Commissioner Erica Sugarmon, and Memphis City Councilman J.B. Smiley all lacked standing to bring the lawsuit. A Nashville Chancery Court Judge had previously found in favor of the plaintiffs, therefore believing they had standing and were right on the merits. The state appealed the Chancery Court ruling.
Supporters of the National Guard deployment to Memphis cheered the ruling. Attorney General Jonathan Skrmetti posted on X:
“Major victory for public safety in Memphis!
The TN Court of Appeals has upheld a fundamental principle: policy disagreements belong at the ballot box, not the courtroom.”
Of course, that is not what the court said at all. At the risk of digressing, a courtroom is exactly the place to resolve matters of law that cannot be timely addressed in the legislature or at the ballot box. The power of the chief executive of the state to deploy the military is a fundamental question of democracy and is enshrined in our U.S. Constitution.
By ruling that the plaintiffs lacked standing in the official capacities and as taxpayers in the cases of Yarbro and Salinas, the court was saying that they had failed to demonstrate:
“A distinct and palpable injury not in common with the general public; a causal connection between the alleged injuries and the defendants’ deployment of the National Guard to Memphis, and alleged injuries that are capable of being redressed by a favorable order for declaratory or injunctive relief.”
The short-term impact is that the National Guard remains in Memphis until the Governor sends them home or the state’s Supreme Court rules on the merits of the lawsuit. It remains to be seen whether the plaintiffs will appeal to the Supreme Court, which presumably would have to focus on the issue of standing.
The long-term implications are that the Governor continues to have a fairly wide berth in determining when and for what purposes to deploy the guard. This is particularly important considering that U.S. Senator Marsha Blackburn and her well-heeled primary opponent, Congressman John Rose, have been outspoken in their support for guard deployment to Memphis.
Unsettled questions include whether the National Guard is a Militia. An opinion from former Attorney General Herb Slatery that has since been removed from the state’s website, opined that the guard is a militia. This is important because the state constitution only gives the governor the right to deploy the militia to quell a rebellion or insurrection.
Another key question is what the definition of is of a “grave emergency.” A Tennessee statute allows the governor to deploy the National Guard in the event of a “grave emergency,” but the term is not defined.
A finding by a court that the National Guard is a militia would likely render the second question moot since the militia can only be deployed to tamp down an insurrection. However, if the National Guard is not a militia, then the question is whether the crime problem in Memphis, comparable to most major cities, constitutes a “grave emergency.”
Unfortunately, for both supporters and opponents of National Guard deployment, it may be years and more lawsuits before we receive any answers to these questions. The ambiguity in the hands of a poor chief executive could have serious consequences for liberty and personal freedom.