Stockard on the Stump: AG’s Office needs outside help to argue gender-affirming care case

Tennessee Attorney General Jonathan Skrmetti has hired a Nashville attorney to handle cases related to transgender issues at the rate of $10,000 per month. (Photo: John Partipilo)

The Tennessee Attorney General’s Office has a strategic litigation unit that spends time fighting the Biden Administration on federal “overreach.” Yet it hired a Nashville-based attorney, one of several outside attorneys, to help it win the state’s gender-affirming care battle, at $10,000 a month for two years.

WIRED, a liberal leaning news site, and The Tennessean both reported on the matter, noting Gov. Bill Lee authorized the monthly rate for Nashville-based Lawfair attorney Adam Mortara. The AG’s Office did not respond to questions about the matter Thursday.

Lawfair also had a contract attorney on its staff, Christopher Roach, who left the firm after WIRED asked about his connections to online accounts that posted white supremacist and antisemitic posts.

One account said, “America, frankly, would be a much more civilized, safe, wealthy, and orderly place, but for its minorities,” according to the article.

Mortara is a former clerk for Justice Clarence Thomas who represented Students for Fair Admissions in the Supreme Court case that killed university affirmative action policies. He reportedly told WIRED that Roach is no longer with the firm and that he didn’t work on the gender-affirming care or affirmative action challenge. Roach was an adjunct fellow at the Center for American Greatness, whose publisher was a part of the Claremont Institution, which is a Project 2025 advisory board member, according to the report.

Gee, it’s funny how all of these groups are linked to a plan to reshape the country if Donald Trump wins the presidency this fall. Mortara might have forced Roach out, but he should have known his background in the first place. And so should the state.

Even more interesting is how the state keeps putting itself into the position of hiring outside counsel to fight its legal battles. The gender-affirming care case is set to be argued before the high court this fall after the American Civil Liberties Union and Lambda Legal requested the court review a ruling by the 6th Circuit Court of Appeals that upheld the state law. It prohibits doctors from giving gender-affirming medical care to minors, including puberty blockers, hormones and surgery, the same sort of Big Brother-type philosophy that prohibits abortions and punished doctors who might give women the care they need in deadly pregnancies.

Attorney General Jonathan Skrmetti said in a June statement, “We fought hard to defend Tennessee’s law protecting kids from irreversible gender treatments and secured a thoughtful and well-reasoned opinion from the Sixth Circuit.” He noted the case will provide clarity on whether the Constitution protects gender identity.

The Biden Administration also sought a high court review arguing that under federal law the government can intervene in cases involving equal protection violations.

If you don’t like it, nullify it

Despite an attorney general’s opinion invoking the supremacy clause, state Rep. Bud Hulsey is standing by a bill to nullify federal laws and orders deemed unconstitutional (by who else but the state Legislature).

Hulsey, a Bristol Republican, and Sen. Janice Bowling, a Tullahoma Republican, sponsored such a bill in 2024 designed to let the state Legislature ignore federal edicts and laws. It didn’t fare well, failing in the Senate State and Local Government Committee and never moving in the House.

You know it’s a sketchy idea when even a Republican bill can’t get footing among the GOP supermajority.

Rep. Bud Hulsey, a Bristol Republican, is likely to again sponsor a bill to permit nullification, which would allow the state to ignore federal laws and executive orders. (Photo: John Partipilo)

Not one to be dissuaded, Hulsey, a former law officer, is likely to revive his bill in 2025, arguing that states’ establishment of the “central government” allows them to ignore laws and executive orders that don’t fall within the federal government’s “limited” original construct and the Bill of Rights, especially those that state leaders find to be the dreaded “overreach.” 

That would include the 10th Amendment, which gives states power over any matters not specifically outlined for the federal government.

“They were very, very worried and leery that this central government could become tyrannical because everything in their lifetime, in their history, they’d seen that,” Hulsey says.

Curse you, King George, and those Biden vaccinations too.

Hulsey is well aware that even Attorney General Jonathan Skrmetti, who pours a great deal of time and energy into fighting the federal government, opined that the supremacy clause gives the feds authority over state action.

But Hulsey contends that’s because the “law school boys” have been taught that concept for the last 100 years.

Nevermind a little conflagration over states’ rights (slavery) from 1861 to 1865 that killed up to 750,000 Southern and Northern soldiers, not including civilian casualties or those maimed for life after running into a hail of cannon fire.

With an eye out for insurrection – I mean the bill’s resurrection – Senate State and Local Government Chairman Richard Briggs is holding an Oct. 3 meeting to give both sides of the issue plenty of time to make their arguments. 

Briggs acknowledges the matter has been “controversial” since the 1700s when even Thomas Jefferson, James Madison and Johns Adams weighed in for it. And when South Carolina balked at tariffs enacted by Andrew Jackson’s administration, he threatened to invade the state, a precursor of sorts to secession and the Civil War.

States also tried to use the nullification argument against Brown v. Board of Education, Briggs, a Knoxville Republican, points out. It also took most states about 15 years to integrate schools.

“The Supreme Court consistently, again and again, said you can’t do that. That’s unconstitutional,” says Briggs, who sought the AG’s opinion on nullification.

Of course, this Supreme Court has its own way of thinking, depending on how much benefactors fill the justices’ pockets. Thus, it’s hard to put too much stock in the land’s highest court, even if we have no choice.

Under Hulsey’s reasoning, though, the Supreme Court doesn’t determine the law of the land, which in some cases might not be a bad idea.

But for the time being, federal law trumps state law, Briggs points out. In addition, the AG opinion wandered into the “separation of powers,” because the state Legislature would be setting itself up to decide which laws and orders are constitutional, something Skrmetti wrote was “indefensible.”

Wrap it up, please

Based on the Legislature’s actions in trying to run Metro Nashville the last couple of years, constitutional muster isn’t a strong point.

Republican lawmakers put the attorney general in a hard spot, asking him to defend them in cases they were unlikely to win. Maybe he should have told them he was going into court with both hands tied behind his back. Of course, they wouldn’t have listened, and we’d have chaos, which is often the case — on the House floor anyway — and makes a great opportunity for journalists who like to shoot video. One of these days, I’m going to learn how to type, post online, record video and chew bubble gum at the same time. By then, I’ll probably be closer to retirement than Tennessee Journal writer Andy Sher.

But getting back to this summer study (fall) session, Briggs appears to be getting it out of the way because his committee won’t have time to deal with nullification witnesses when the real session starts. 

That vote, though, is likely to be pretty quick and painless. 

Take the highway

A Shelby County chancellor ruled in favor of the Memphis City Council this week, determining it could place three gun-restriction questions on the November ballot.

The decision came after the Shelby County Commission backed the council decision with an 8-3-1 vote.  

Memphis City Council attorney Allan Wade was writing an official decree Thursday for the chancellor to sign. 

Shelby County Election Commission declines to put Memphis gun restriction resolutions on ballot

It’s unclear yet whether the state attorney general will appeal the case, which was moved up from Sept. 16. 

Tennessee Election Administrator Mark Goins contends the items can’t go on the ballot because state law preempts local governments from setting gun restrictions. The city charter questions ask voters about handgun permits, military-type gun laws and extreme risk protection orders.

Lt. Gov. Randy McNally and House Speaker Cameron Sexton aren’t likely to stand for it, though there’s no word from their offices on a possible appeal.

Odds are it’s automatic, even though City Councilman Jeff Warren, co-sponsor of the referendum resolutions, says they are only a “trigger” mechanism that wouldn’t take effect unless the state passes laws making them possible. 

TSU Tigers hitting the big time

Tennessee State University will be the focal point of ESPN on Oct. 11 when First Take, starring Molly Qerim, Stephen A. Smith and Shannon Sharpe, will shoot its morning talk show there. It’s part of the group’s travels to HBCUs nationwide this fall.

A nagging question

Tennessee Education Commissioner Lizzette Reynolds repaid more than $2,000 to her former employer, ExcelInEd after it funded her travel to two out-of-state conferences last year. The money swap led the Tennessee Ethics Commission to dismiss a sworn complaint against her.

Gov. Bill Lee, though, is refusing to repay Alliance Defending Freedom, a conservative Christian group, after it funded his travel and lodging to speak at a conference at tony San Marco Island in South Florida. Lee said this week 501(c)3 groups are allowed to pay the expenses. In this case, ADF Action, the group’s kissing cousin, hires a Tennessee lobbyist who’s also employed by the partner group. Fortunately, state law no longer allows first cousins to marry.

Yet the question remains: Why would someone with more money than Davy Crockett worry about paying for travel and lodging to Florida? 

Looks as if we have rules for thee but not for Lee.