As Gov. Bill Leeโs immigration enforcement plan moves swiftly through the Tennessee Legislature, one component of the bill โ aimed at arresting local officials who support sanctuary policies for immigrants โ drew scrutiny Tuesday.
Included in the governorโs wide-ranging proposal to coordinate with the Trump Administration on mass immigrant detentions and deportations is a provision that creates a Class E felony for public officials who vote to adopt or enact sanctuary policies. Sanctuary policies can shield undocumented immigrants and limit cooperation with enforcement action.
The felony charge, punishable by up to six years in prison and a $3,000 fine, would apply to any public official who votes in favor of a sanctuary law, policy or on non-binding resolutions.
Sen. Todd Gardenhire, the Republican chair of the Senate Judiciary Committee, blasted the provision Tuesday as a โdangerous precedent.โ
โWe are a Republic, and a Republic is one that we elect people to vote the way they feel like is best for the district, the city, county or the state,โ he said.
โIf we set the precedent of penalizing any elected official for voting their conscience, whether itโs good or bad, then we set a dangerous precedent for the future,โ he said.
Democrats characterized the provision as a โslippery slopeโ that could be invoked in future legislation to criminalize votes on any controversial issue.
โIt is alarming we are sitting here talking about felonizing elected officials taking votes on behalf of their constituency,โ Sen. Heidi Campbell, a Nashville Democrat, said. โBoy, this is a slippery slope and be careful what you wish for if you vote for this.โ
Gardenhire was in the minority among Republicans who dominate the Senate Judiciary Committee he chairs. They quickly shot down Gardenhireโs efforts to amend the bill to remove criminal penalties before voting to advance it in the legislature.
Sanctuary policies are already prohibited by a 2019 Tennessee law that sought to prevent local governments from adopting sanctuary city status โas some other Democrat-led cities across the country have done.
The 2019 Tennessee law gives citizens the right to file civil suits challenging any jurisdictionโs adoption of sanctuary policies and the state the power to withhold funding over violations.
โWhen the state banned sanctuary cities, its remedies were to deny cities grants and to seek a court order,โ said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.
โHere the state is trying to control the actions of duly-elected officials through the police power,โ he said. โThatโs a dramatic escalation.โ
One national government accountability expert said he knew of no other state law that threatened to prosecute public officials for how they cast a vote.
โItโs an unprecedented power grab and criminalization of political discourse,โ said Dan Vicuรฑa, director of redistricting and representation for Common Cause, a Washington, D.C. advocacy group.
โIt puts at risk the basic right to local representative and democratic government,โ he said.
And local legal experts, among them the legislatureโs own attorney, said the provision may be โconstitutionally suspect.โ
โGenerally speaking Tennessee courts have found legislative bodies have legislative immunity for acts that serve part of their legislative function and that legislative immunity extends to local legislative bodies,โ Elizabeth Insogna, a Legislative attorney, told the committee.
โItโs possible that a criminal provision that is enforced against a member of a legislative body may be constitutionally suspect,โ she said. โIt would be up for a court to determine.โ
John Vile, professor of political science and Dean of the University Honors College at Middle Tennessee State University said โlegislators should heed Article 1โ of the Tennessee Constitution, which establishes a โDeclaration of Rightsโ for citizens and their elected representatives.
โI donโt know of any other laws, state or federal, that penalize elected officials on the basis of how they vote,โ he said. โThis seems to defeat the whole purpose of democratic-republican (representative) government.
Republicans however noted the criminal penalties are aimed at elected officials attempting to pass legislation already outlawed in Tennessee.
โI think everybody would agree thatโs something that elected officials should be prohibited from doing, or should not do,โ said Sen. Kerry Roberts, a Springfield Republican. โThe fact thereโs a consequence for it, I personally donโt have a problem with that, because they ought not to be doing it in the first place. Itโs illegal.โ
Only two current laws provide criminal penalties for lawmakers acting in their official capacities, according to Stephen Crump, executive director of the Tennessee District Attorneys General Conference. One longstanding law allows criminal charges to be brought against county commissioners who fail to adequately fund local jails. Other lawmakers may be charged if their vote violates official misconduct statutes.
Senate Majority Leader Jack Johnson, in an emailed statement, said the criminal penalties โreflect the overwhelming belief of our constituents, who have made it clear that they expect us to work in lockstep with the Trump administration to enforce federal immigration laws.โ
โRequiring localities and public officials to comply with federal law is not a matter of political opinion,โ the statement said. โIt reflects a commitment to upholding the rule of law and ensures consistency between federal and state efforts to address immigration challenges.โ
Johnsonโs statement noted that, should the bill succeed, ultimately, be up to judges to decide how to weigh the law.
โShould an elected official choose to enact a sanctuary policy and be charged under this legislation, I am confident that a court would carefully consider whether absolute legislative immunity applies to acts that are criminal under both state and federal law.โ