Mark Pulliam, a retired attorney and Misrule of Law blogger, said a bill in the Tennessee General Assembly would essentially “tie” the hands of Tennessee Attorney General Jonathan Skrmetti when defending the separation of powers and constitutional rights of Tennesseans.
State Senator Janice Bowling’s (R-Tullahoma) “Restoring State Sovereignty Through Nullification Act,” filed as SB 479/HB 441, was originally introduced – as it has been for the past three general assemblies – as a bill that would establish processes by which the state may nullify an unconstitutional federal statute, regulation, agency order, or executive order.
However, after the attorney general issued a legal opinion last year branding the bill as unconstitutional, Bowling’s new bill has been amended that would force the Tennessee Attorney General’s “Strategic Litigation Unit” to adopt a fringe theory relying on “natural law” and 18th-century interpretations.
Pulliam argues that forcing the attorney general to “ignore over 200 years of Supreme Court decisions” would make it impossible for the attorney general to defend Tennessee’s legal interests in federal court.
“Constitutionality, for the last 200 years, has been determined by a number of things, including the prior decisions of the U.S. Supreme Court,” Pulliam explained on Monday’s edition of The Michael Patrick Leahy Show.
“If you were to tell the Strategic Litigation Unit that you must, when you litigate, put on blinders and ignore 200 years of Supreme Court case law and use these ancient historic sources instead, you would lose every case, you would lose every argument because those are not the controlling legal authorities that federal courts use,” Pulliam added.
Pulliam said the effect the amendment would have on the attorney general’s office would be comparable to a doctor using out of date practices like “blood-sucking leeches” or an archer shooting with a blindfold on.
“It’s like telling a Mayo Clinic doctor that they have to cure patients by using blood-sucking leeches and giving them patent medicines. Or, telling a sharpshooter or an archer, you have to try to find the target while you’re wearing a blindfold. You want our attorney general to be doing the best job that he can using the correct and accurate sources and not, basically, tie his hands behind his back as this amendment would do,” Pulliam said.
Pulliam further argued that it is “not appropriate” for the general assembly to decipher how the attorney general writes opinions and what methods he were to use to argue against a federal action.
“It’s not an appropriate thing for the legislature to be telling our attorney general how he should be writing opinions and what sources and methods he should be using when he’s opining on the constitutionality of a federal action,” Pulliam said.
Pulliam criticized the language of the amendment regarding presidential executive orders. The amendment proclaims that the executive has no lawmaking authority and that “contrary to popular opinion, federal executive orders…are not laws at all.”
“What President Trump has done so far is he’s made an extraordinary number of executive orders to fix any things that are wrong with the federal government, and it’s making a lot of positive progress in terms of draining the swamp,” Pulliam explained.
“So just as a timing matter, I don’t understand why Republicans in Tennessee are espousing rhetoric that could be used by liberals to discredit the authority of President Trump’s executive orders,” Pulliam added.
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Kaitlin Housler is a reporter at The Tennessee Star and The Star News Network. Follow Kaitlin on X / Twitter.
Photo “Jonathan Skrmetti” by Tennessee Attorney General.
