South Dakota rep introduces bill to review presidential executive orders for constitutionality

South Dakota rep introduces bill to review presidential executive orders for constitutionality
AP Photo/Alex Brandon, File
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President Joe Biden’s executive orders have resulted in the termination of tens of thousands of jobs in the oil and gas industry, including in South Dakota. Anticipating similar future orders, the South Dakota House of Representatives is seeking to give the state’s Attorney General the authority to review orders from the president and potentially nullify any order deemed unconstitutional. 

The Daily Wire reports that State Rep. Aaron Aylward introduced Bill HB1194, which if passed would provide the Attorney General with the ability “to authorize the review of certain executive orders issued by the President of the United States.”

Under the prospective legislation, the process to nullify an executive order bypasses congressional approval and “begins with a review by the Executive Council of the Legislative Research Board, followed by a referral from the Council to the attorney general and the governor,” according to South Dakota news station KELO-TV. “Once the referral has been made, the attorney general may examine the order to determine whether the state can seek an exemption or declare it unconstitutional.”

Under the bill, South Dakota could be exempt from any law or order “that restricts a person’s rights or that is determined...to be unconstitutional” by Attorney General Jason Ravnsborg. In order for the state to be exempt from an executive order, it has to pertain to the following issues: 

  1. A pandemic or other public health emergency
  2. The regulation of natural resources
  3. The regulation of the agricultural industry
  4. The regulation of land use
  5. The regulation of the financial sector through the imposition of environmental, social, or governance standards, or
  6. The regulation of the constitutional right to keep and bear arms

Aylward said that the proposed legislation is not specific to President Biden.

“This isn’t just a President Biden issue but rather an overall executive overreach issue that we’ve been experiencing for a long time,” Aylward said. “The U.S. Congress has abdicated their duty for a long time in different areas. This bill is simply setting up a process to nullify acts that would be unconstitutional. When looking at the U.S. Constitution, the President only has the powers that are laid out in Article II.”

Aylward said that the bill would also provide South Dakota the authority to oppose a potential national mask mandate, as has been proposed by Biden. 

“This pertains to our rights that are protected under the U.S. Constitution. If the President ordered a nationwide mask mandate, it would go against the power laid out in Article II, and it would also go against the protection of the rights that may lie underneath the 9th and 10th Amendments,” he said. 

Aylward, a Republican, said the bill if passed would give South Dakota “much of its power back.”

"Per the supremacy clause of the U.S. Constitution, the powers of the federal government need to line up with what is laid out in the document. 'Which shall be made in pursuance thereof[.],'" he said.

South Dakota stands as one of the best examples of governance when it comes to handling the coronavirus pandemic, boasting some of the lowest case and fatality numbers in the U.S. since the pandemic began. Under the leadership of Republican Gov. Kristi Noem, the state has not had strict lockdowns and has instead kept its businesses open, allowing its workforce to continue to thrive.

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