OPINION: This article contains commentary which reflects the author's opinion
The Oklahoma House of Representatives, which is controlled by Republicans, has passed a bill that would allow the state to put the brakes on the power of Joe Biden’s executive orders in the state.
Oklahoma House Speaker Charles McCall and State Rep. Mark McBride, both Republicans, introduced the bill, which passed in the House 79 to 18.
The bill, HB 1236, would allow the Oklahoma state legislature to review each executive order and determine if the order should be given to the Oklahoma attorney general, who would determine if it is allowed under the U.S. Constitution.
If the attorney general deemed an executive order unconstitutional, the bill seems to indicate the attorney general could sue for a court order invalidating the executive order.
If the attorney general decides not to take action on an order, the legislature could conduct a majority vote declaring it unconstitutional.
If the legislature invokes its option to declare an executive order unconstitutional, the statute is unclear whether the Oklahoma government would file suit or the state would ignore the order inside the state, leaving it to the federal government to enforce or try to take it to court.
The bill states:
Notwithstanding any other provision of law, the state, county, political subdivision or any other publicly funded organization shall not implement any action that restricts a person’s rights or that the Office of the Attorney General or the Legislature by a majority vote determines to be unconstitutional.
Federal law always trumps state law, but any federal action that is unconstitutional is not a law at all.
Oklahoma is the second state to take such action.
Last month, South Dakota’s Republican-controlled House introduced legislation that would allow the state to nullify Biden’s executive orders if it determines they are unconstitutional.
“The Executive Board of the Legislative Research Council may review any executive order issued by the President of the United States if the order has not been affirmed by a vote of the Congress of the United States and signed into law, as prescribed by the Constitution of the United States,” the bill’s text reads.
“Upon review, the Executive Board may recommend to the attorney general and the Governor that the order be further examined by the attorney general to determine the constitutionality of the order and to determine whether the state should seek an exemption from the application of the order or seek to have the order declared to be an unconstitutional exercise of legislative authority by the President,” it adds.
The legislation adds:
Notwithstanding any other law, no state agency, political subdivision, or any elected or appointed official or employee of this state or of a political subdivision may implement an executive order that restricts a person’s rights or that is determined by the attorney general to be unconstitutional under this section if the order relates to:
(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.
The bill sets up a process for reviewing the president’s executive orders, which would be submitted to the governor and attorney general so that the attorney general could “determine whether the state should seek an exemption” from the order or have it “declared an unconstitutional exercise of legislative authority by the President.”
Biden has set a record-shattering pace for executive orders and Republican-controlled states are fighting back.