12/03/2025
๐๐ญ๐๐ญ๐ ๐
๐ข๐ฅ๐๐ฌ ๐๐ฉ๐ฉ๐๐๐ฅ ๐จ๐ ๐๐๐ฌ๐ก๐ฏ๐ข๐ฅ๐ฅ๐ ๐๐ก๐๐ง๐๐๐ซ๐ฒ ๐๐จ๐ฎ๐ซ๐ญ ๐๐ซ๐๐๐ซ ๐๐จ๐ง๐๐๐ซ๐ง๐ข๐ง๐ ๐๐๐ญ๐ข๐จ๐ง๐๐ฅ ๐๐ฎ๐๐ซ๐ ๐ข๐ง ๐๐๐ฆ๐ฉ๐ก๐ข๐ฌ
Today on December 2, 2025, the State filed a Rule 9 appeal in the Court of Appeals at Nashville challenging the Davidson Chancery Courtโs temporary injunction against the deployment of the Tennessee National Guard in Memphis. This essay means to make the legal jargon accessible to the average person while also elucidating key legal elements for my colleagues. You can read the first part of this legal saga here:
https://www.facebook.com/share/p/19tmDS3NfJ/.
๐๐ง๐ญ๐ซ๐จ๐๐ฎ๐๐ญ๐ข๐จ๐ง ๐ญ๐จ ๐ญ๐ก๐ ๐๐๐ ๐๐ฅ ๐๐๐๐ข๐ง๐ข๐ญ๐ข๐จ๐ง๐ฌ
First, what is a temporary injunction? A temporary injunction is like a temporary restraining order, just like someone might seek against an abusive, stalker ex-boyfriend. In this situation, the plaintiffs (a group of politicians, legislators, etc.) successfully argued for that order against Governor Bill Leeโs deployment of the TN National Guard. The Chancery Court judge, anticipating the appeal to a higher court, included in its order that if an appeal were sought, the chancery courtโs order issuance of the restraining order would be stayed (rendered null) pending the outcome of the appeal.
A Rule 9 appeal is an โinterlocutory appeal.โ The government wants the Court of Appeals to review and reverse the Chancellorโs temporary injunction before the case concludes at the trial level. ecause this is not a final judgment, the State cannot appeal as a matter of right. Instead, it must ask for permission to file an interlocutory appeal, arguing that (1) the lower court's decision is likely wrong on several key points; and (2) waiting for the case to end would cause significant harm.
๐๐ก๐ ๐๐ญ๐๐ญ๐โ๐ฌ ๐๐๐ ๐๐ฅ ๐๐ญ๐ญ๐๐๐ค ๐จ๐ง ๐ญ๐ก๐ ๐๐ก๐๐ง๐๐๐ฅ๐ฅ๐จ๐ซโ๐ฌ ๐๐ซ๐๐๐ซ
The government argues the Chancellor was wrong on three fundamental, case-ending issues: (1) Whether sovereign immunity bars the suit; (2) whether the plaintiffs even have standing to bring the challenge against the governor; and (3) Whether the Chancellor improperly determined that โongoing criminal activityโ constitutes a โgrave emergency.โ As a final matter, the State also asks the court to determine whether the deployment violates Article III, Section 5 of the Tennessee Constitution.
The first two issues, sovereign immunity and standing, are particularly strong for the government. Sovereign immunity argues that the courthouse doors are closed to these specific plaintiffs for this type of suit. Standing argues that even if the doors were open, these plaintiffs have not presented the kind of concrete injury that a court is empowered to resolve.
A. ๐๐๐ฃ๐๐๐๐๐๐ ๐ผ๐๐๐ข๐๐๐ก๐ฆ ๐ด๐๐๐ข๐๐๐๐ก
The State contends that the plaintiffs (government officials suing in their official capacity) are not "persons" who can sue the State under the specific waiver of immunity found in Tenn. Code Ann. ยง 1-3-121. The State argues that this waiver was intended only for private citizens. Indeed, there is a long-standing legal presumption that the word "person" in a statute does not include the sovereign (i.e., the government or its entities) unless the statute expressly says so.
By making this argument, the State is asserting that the Chancellor improperly expanded a limited waiver of immunity. This, in the State's view, allows the judiciary to referee a political dispute between different parts of the government, a role it was not meant to have. If courts can freely interpret immunity waivers to allow such lawsuits, the executive branch's ability to carry out its duties could be constantly hampered by litigation from any dissenting official. This would disrupt the constitutional balance by elevating the judiciary's power over the executive's power.
The State's filing directly attacks the weakest point in the Chancellor's order. The Chancellor tried to bypass the immunity issue by reasoning that because the plaintiffs sued "in his or her own name," they qualified as "affected persons.โ The government effectively attacks that, because it correctly identifies that an "official-capacity" suit remains a suit against the government entity, regardless of how the caption is styled. The filing cites U.S. Supreme Court precedent for the rule that the "real party in interest" is the government entity. If I were the plaintiffs, here are the arguments I would make in response:
First, the very purpose of a statute allowing suits against the government for unconstitutional acts is to provide a check on state power. Interpreting "person" so narrowly as to exclude the very officials who are constitutionally tasked with providing checks and balances (like legislators) would frustrate the statute's core purpose. They can argue that when a constitutional violation is at stake, the waiver should be interpreted to provide a remedy, not to foreclose one on a technicality.
Second, the injury here is unique to them as officeholders. The Governor's action allegedly nullified their specific constitutional duties and rights. This direct infringement on their personal capacity as officials makes them "affected persons" in a way that is distinct from the government entity they represent. The Chancellor's reasoning, which the State attacks, could be defended as recognizing this unique, hybrid injury.
Finally, though there is a presumption that โpersonโ does not include the sovereign, presumptions can be rebutted. The plaintiffs can argue that if the General Assembly had intended to bar inter-branch lawsuits under this specific waiver, it could have explicitly said so, as it has in other statutes concerning sovereign immunity. The statute's silence allows for an interpretation that serves the constitutional goal of accountability.
B. ๐๐ก๐๐๐๐๐๐ ๐ด๐๐๐ข๐๐๐๐ก
The State argues that the plaintiffs donโt have standing, because theyโve lodged a โpolicy objectionโ as opposed to a concrete, personal injury. By challenging the plaintiffs' standing, the State is arguing that the Chancellor allowed the court to be used as a venue for a political fight. If any legislator who disagrees with the Governor can sue, the judiciary would become the primary forum for resolving policy disputes, usurping the roles of the executive and legislative branches. This is precisely the concern addressed in cases like ๐
๐๐๐๐๐ ๐ฃ. ๐ต๐ฆ๐๐, where the U.S. Supreme Court denied standing to legislators who claimed an act of Congress diluted their power.
The plaintiffsโ situation is different than ๐
๐๐๐๐๐ ๐ฃ. ๐ต๐ฆ๐๐. Their claim is not that their power was diminished, but that it was usurped. Article III, Section 5 of the Tennessee Constitution gives the General Assembly a specific, mandatory role in authorizing a Guard deployment. By acting unilaterally, the Governor allegedly bypassed this role entirely, inflicting a concrete institutional injury that is far more direct than a general loss of political power. For the local officials (Mayor Harris and the commissioners), the injury is not abstract. The State's own filing notes the Guard's presence precipitated a massive increase in arrests. This directly impacts local resourcesโjails, courts, and public servicesโthat these officials are responsible for managing. This is a "distinct and palpable" injury to their ability to govern, not a mere policy disagreement.
The State suggests the plaintiffs' remedy is political. However, the plaintiffs can strongly argue that for an ongoing, allegedly unconstitutional executive action, political remedies are inadequate. Passing a new law is slow and subject to veto, and impeachment is an extreme and impractical tool. An injunction from a court is arguably the only effective and timely remedy to halt an ongoing violation of the separation of powers.
๐๐ก๐ฒ ๐ญ๐ก๐ ๐๐ญ๐๐ญ๐ ๐๐ก๐ข๐ง๐ค๐ฌ ๐ ๐๐ฎ๐ฅ๐ ๐ ๐๐๐๐๐ฌ๐ฌ๐๐ซ๐ฒ
Since the grant of the temporary injunction (restraining order) does not constitute a final order in the case, the COA (Court of Appeals) must grant the State the right to appeal the case. The COA grants a Rule 9 permission to appeal for three reasons: irreparable harm, preventing needless and protracted litigation, and development of a uniform body of law. As to irreparable harm: (1) The State asserts that the Guardโs removal will leave Memphis vulnerable to crime and lead to loss of life the โgravest form of โirreparable injuryโ imaginable.โ Stateโs Brief, p. 18.
The government also has some less conjectural arguments against the Guardโs removal: (2) The withdrawal would disrupt the operational integrity of the Memphis Safe Task Force and waste millions in federal funds tied to contracts for vehicles, lodging, and meals, which a paltry $50,000 injunction bond would not cover. Stateโs Brief, p. 19. Finally, the State makes a complicated legal argument about sovereign immunity. (3) Finally, the State argues that sovereign immunity is an immunity from the burden of a lawsuit itself, not just a defense to liability. If the State is forced to continue litigating a case from which it should be immune, that right is "effectively lost."
๐๐จ๐ง๐๐ฅ๐ฎ๐ฌ๐ข๐จ๐ง
This case is a vivid reminder that constitutional principles are not suspended in emergenciesโthey are tested by them. Again, I must note the questions we now face about emergency powers, public safety, and the limits of executive authority are the same ones that plagued our stocking and wig-wearing ancestors. The Rule 9 appeal now before the Court of Appeals is more than a dispute over statutory interpretation or procedural technicalities; it is a contest over the meaning of law and order, the reach of executive power, and the resilience of democratic institutions. The judiciaryโs willingness to enforce constitutional limits, even when the stakes are high and the issues politically charged, is essential to maintaining public trust and the legitimacy of government action.
For Tennesseans, the legal battle over the National Guardโs deployment in Memphis is not just about one city or one crisis. It is about ensuring that emergency measures remain subject to transparent debate, legislative oversight, and judicial review. The constitutional framework, shaped by historical experience and collective wisdom, remains our best safeguard against the dangers of unchecked power. As the appellate court weighs the arguments, the importance of vigilance, accountability, and fidelity to constitutional process cannot be overstated. The outcome will shape not only the immediate response to public safety concerns, but also the long-term health of Tennesseeโs democracy.
