A three-judge panel of the Tennessee Court of Appeals heard oral arguments Thursday over the legality of Gov. Bill Lee’s deployment of the Tennessee National Guard to Memphis.
The court is reviewing a November order by Chancery Court Judge Patricia Moskal to temporarily block the Guard from Shelby County in a challenge brought by local and state elected officials, including Shelby County Mayor Lee Harris, who has criticized the show of force.
Moskal’s order was placed on hold pending the outcome of the appeal, and Tennessee National Guard members continue to patrol Shelby County as part of the Memphis Safe Task Force, a multi-agency partnership to combat violent crime in the city established via an executive order by President Donald Trump last year.
The Court of Appeals did not rule on the matter Thursday and set no timeline for issuing a written opinion.
The state’s defense
Matt Rice, the Tennessee Solicitor General defending Lee in the lawsuit, argued Moskal made three legal errors in reaching her ruling: waiving Lee’s claim to sovereign immunity, granting local officials standing to pursue the lawsuit and siding with plaintiffs on the merits of the case, which distill down to whether Lee has the legal authority under state law or the Tennessee Constitution to unilaterally deploy the Guard on a crime-fighting mission.
“In September 2025, Memphis was the most violent city in the country,” Rice said. “So the governor took action. He mobilized the National Guard as part of the Memphis Safe Task Force. That mobilization falls squarely within the governor’s statutory authorization and his constitutional authority as the state’s commander in chief.”
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Appellate Judge Jeffrey Usman quickly interrupted to challenge Rice’s argument that the governor has sovereign immunity.
“It’s not a dollars and cents lawsuit,” said Usman, a Lee appointee to the court. “It’s an allegation that this is an unconstitutional action, or illegal action, and seeking prospective injunctive relief. So why are we in the word of sovereign immunity at all,” he asked.
Rice said that a finding the governor does not have immunity from legal challenges such as this could have “staggering” implications in the future.
“If, as Judge Usman referred to, there’s a waiver of sovereign immunity … that means that any time an individual legislator thinks that anyone in the executive (branch) acts outside the scope of their authority, they can bring a lawsuit. That is a staggering position,” he said.
Rice also argued that the plaintiffs in the suit – in addition to Harris, they include three Democratic state lawmakers, two Shelby County commissioners and one Memphis council member – have failed to demonstrate they have individually suffered any injury from the deployment, a legal threshold required of a party seeking standing to file suit.
“There’s no evidence of diverted mayoral resources or interference with executive duties,” Rice said. “And even if there were, the mayor’s voluntary diversion of his time is not a justiciable injury. That the mayor may choose to spend more time on TV or doing interviews or going to press conferences rather than governing is not a justiciable injury.”
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Rice repeatedly returned to Memphis’ gang and crime activity to defend the governor’s use of the Guard.
Memphis, Usman said, “has had a crime problem for some years.”
“For a grave emergency does there have to be some sort of change or alteration? Does it have to be something that (is) suddenly arising or significant alternation in the level of the problem?” he asked.
“Our position is not that the governor can mobilize the National Guard just to stop crime,” he said
“I think if the governor mobilized the National Guard and claimed there was a grave emergency in Brentwood, I think that’s a hard case to make. But when you have the most violent city in the country, and you have a significant departure from the baseline with respect to crime, we do think that constitutes a grave emergency.”
Plaintiffs’ attorney: Governor’s actions “Illegal twice over”
Joshua Salzman, an attorney with Democracy Forward Foundation, which is representing the public officials filing suit, argued Lee’s deployment of the Guard was “illegal twice over.”
Tennessee law allows the governor to deploy the Tennessee National Guard only under certain enumerated circumstances, none of which include routine law enforcement, he said. And the Tennessee Constitution “clearly bars deployments of the militia unilaterally by the governor.”
Whether the National Guard is classified as a “militia” is a key legal question in the case.
The Tennessee constitution restricts the use of the militia by the governor to cases of “rebellion or invasion.” Rice argued the Tennessee National Guard was a state army and not subject to the restrictions for militias.
Salzman’s arguments drew questions from Judge Andy Bennett, appointed in 2007 by former Democratic Gov. Phil Bredesen.
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“So your position is (the Tennessee National Guard) is a militia and you can’t call out the militia except for rebellion and invasion?” Bennett asked.
“So we can’t call the National Guard to cut tree branches and free up roads after an ice storm? We can’t call out the National Guard to help with COVID or with floods?”
Salzman declined to take a position on the use of the Guard for these purposes, pivoting instead to enumerate the ways the Tennessee National Guard met the definition of a militia: “an armed service, people who are primarily civilians, who are called into military service.”
He cited an opinion by former Tennessee Attorney General Herbert Slatery, which has since been removed from a state website, that concluded the Tennessee National Guard is a militia.
“The Chancery Court correctly concluded that the governor did not have virtually limitless authority to send armed troops wherever and whenever he wants, for as long as he wants,” Salzman said.
“On the contrary, the people of Tennessee have consciously withheld such potentially tyrannical powers from the governor.”
Salzman argued against the notion that crime in Memphis constituted a “grave emergency” justifying Lee’s actions.
“This idea that crime prevention, which is a perpetual and continuing need in urban areas, and really in any city, qualifies as an emergency just runs against the basic foundational understanding,” he said.
“There’s a long recognition that law enforcement, in particular, is something that is not to be conducted by military forces, and that there is something particularly pernicious when troops patrol the streets of a city,” Salzman said.
Of note, Salzman sais, is that Lee has never issued any order or formal findings that Memphis is facing a grave emergency.
“There was a press release, then troops showed up,” he said.
Tennessee Lookout is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com.