Will a Davidson County judge agree that neither the Tennessee Constitution nor the General Assembly has granted Gov. Bill Lee the authority to legally deploy the National Guard to Memphis? And what would it even mean if Chancellor Patricia Head Moskal rules against him?
The phrase “constitutional crisis” has been tossed around so often in recent years that it risks losing its meaning. But here, it applies. If Moskal orders the troops removed, the ruling would rely on Gov. Lee himself — the man accused of breaking the law — to carry it out.
The legal drama is officially underway now, as Moskal heard opposing takes in court on Monday, Nov. 3, about the governor’s authority to call the Guard to Memphis.
Shelby County Mayor Lee Harris, one of the seven plaintiffs in the case, said the contradiction at the heart of the dispute couldn’t be clearer.
“You can’t defend the law while breaking it,” Harris said. “No governor in a free state can just, of his own will, send military personnel into any community and execute laws at his discretion.”
Lee’s office pushed back on that interpretation, citing Title 32 of the Tennessee Code.
“The Tennessee National Guard is the state’s army under Tennessee law,” said Elizabeth Lane Johnson, the governor’s communications director. “As commander-in-chief, Gov. Lee has the authority to authorize the Title 32 strategic mission to Memphis.
“Every Memphian deserves to feel safe in their community,” she continued. “We are confident the court will uphold the governor’s constitutional authority.”
The Cases ‘For’ and ‘Against’
The individual state and local Democratic officials contend in a lawsuit that Republican Lee cannot deploy the Tennessee National Guard for civil unrest unless there is a rebellion or invasion, and even then, it would require action by state lawmakers. Another provision spells out a need for a request from a local government to use the Guard in a “breakdown of law and order,” they said.
The lawsuit seeks a temporary injunction to block the Guard’s current use in the Memphis mission.
In a legal filing last month, the state said the plaintiffs are misinterpreting how the Tennessee Constitution classifies the National Guard. Tennessee law gives the governor “the authority to dispatch the Guard when needed and to determine when that need exists,” the state added.
The state also argued that the plaintiffs lacked legal standing to sue over the deployment and added that the issue is a political question, not one for the courts.
Josh Salzman, an attorney with Democracy Forward representing the plaintiffs, called the state’s arguments about the governor’s authority “really terrifying.”
After the hearing, Attorney General Jonathan Skrmetti told the Associated Press that “the argument is not that there’s no room for oversight,” saying that the Guard can’t do whatever it wants. “It’s that the determination of when the Guard should be brought out is statutorily left to the governor’s discretion.”
Since their arrival on Oct. 10, National Guard troops have been patrolling neighborhoods and commercial areas of Memphis, including near the Pyramid in downtown, wearing fatigues and protective vests that say “military police.” Officials have said Guard members, who are armed, have no arrest power.
Trump announced in September that the National Guard would accompany authorities from a slew of federal agencies as part of the so-called Memphis Safe Task Force.
Democratic Mayor Paul Young, who is not involved in the lawsuit, said he never requested that the Guard come to Memphis. But after Trump made the announcement and Lee agreed, Young and others have said they wanted the task force to focus on targeting violent offenders.
In addition to Harris, the plaintiffs include two Shelby County commissioners, one Memphis city councilman and three state lawmakers.
Since they arrived Sept. 29, the federal agencies have made more than 1,500 arrests and issued thousands of traffic citations, according to statistics provided by the U.S. Marshals Service. Arrests have been made on charges ranging from homicides and drug and weapons violations to immigration warrants. Lee has said the National Guard would “play a critical support role” for local law enforcement.
Young said earlier this month that operations include some 150 Guard members.
The Memphis Safe Task Force includes 31 partner agencies across different levels of government and more than 1,700 personnel, according to a court declaration by Chad Hunt, chief inspector with the United States Marshals Service and the task force’s commander.
John Raby and Jonathan Mattise of The Associated Press contributed to this report.
