South Dakota GOP Unveils Bill Allowing State To Nullify Biden Executive Orders

Written by Martin Walsh

OPINION: This article contains commentary which reflects the author's opinion




South Dakota’s Republican-controlled House is introducing legislation that would allow the state to nullify President 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.”

The bill targets orders that would “restrict a person’s rights,” specifically pointing to orders related to a “pandemic or other public health emergencies” and “the regulation of the constitutional right to keep and bear arms,” among other topics.

South Dakota has frequently stood out from national and state governments amid the coronavirus pandemic, with Gov. Kristi Noem opting for a more relaxed public health approach that resisted strict lockdowns and mask mandates.

“South Dakota is not New York City,” Noem said of her approach. “Our sense of personal responsibility, our resiliency, and our already sparse population density put us in a great position to manage the spread of this virus without needing to resort to some of the measures we’ve seen in some of these major cities, coastal cities, and other countries.”

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Biden has set a record-shattering pace for executive orders in the first few weeks of his presidency, many of which have been aimed at curbing the yearlong pandemic.