Republican state rep. Aaron Aylward, from Harrisburg, South Dakota, recently introduced the measure HB1194 that gives the state’s attorney general the power to review executive orders sent down from President Biden and possibly void those that the state considers unconstitutional.
The proposal came after a flurry of executive orders and actions during Biden’s first month in office, despite previously noting that only “dictators” rule by executive orders. Rep. Aylward brought the bill forward to review orders that would “restrict a person’s rights” and determine the constitutionality of the order. That would determine whether the state needs to seek an exemption from the order or have it declared as an “unconstitutional exercise of legislative authority by the President.”
“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 reads.
The proposed bill would allow the attorney general to block orders regarding a pandemic or public health emergencies, natural resources, agriculture industry, land use, the financial sector, and the regulation of the constitutional right to keep and bear arms. Rep. Aylward talked about attempts at a national mask mandate and said it would go against the power laid out in Article II, as well as protection of the rights under the 9th and 10th Amendments.
“This isn’t just a President Biden issue but rather an overall executive overreach issue that we’ve been experiencing for a long time. The US 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 US Constitution, the President only has the powers that are laid out in Article II,” Rep. Aylward said.
Federal courts are normally the ones to decide which executive orders and presidential actions are carried by the force of law, but this bill would mark a change between the state and the White House. South Dakota and the White House have moved in different political directions since the beginning of the pandemic.
The state’s Republican Governor, Kristi Noem, has taken a hands-off approach to the pandemic. She has refused to shut down small businesses from operating or force people to wear masks, issuing mainly voluntary public health rules. She said she trusts the American people to make decisions for their health and that she wouldn’t enforce a federal mask mandate since it’s unlikely that the President has legal authority to issue one.
Are states running appropriately and following the constitutions the best they can? Or have they tied themselves to federal dollars and continue to be unconstitutionally tied to the federal government?