PIERRE, S.D. (KELO) — A bill introduced into the South Dakota House of Representatives seeks to give the state’s attorney general the authority to review executive orders issued by the president of the United States.
Introduced by new member Rep. Aaron Aylward of Harrisburg, HB 1194 outlines a process of review for any presidential orders that have not been approved and signed into law by the U.S. Congress.
This process 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. 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.
The bill takes a broad view, stating that no executive order may be implemented “that restricts a person’s rights.”
The proposed bill would also allow the attorney general to block implementation of any order deemed unconstitutional if the order refers to:
- A pandemic or other public health emergency
- The regulation of natural resources
- The regulation of the agricultural industry
- The regulation of land use
- The regulation of the financial sector through the imposition of environmental, social, or governance standards
- The regulation of the constitutional right to keep and bear arms
We reached out to Aylward to ask him why he is proposing this bill, and though he declined to give an on screen interview due to time constraints, he did agree to answer written questions.
The questions below have been edited for brevity and clarity, while Aylward’s answers appear in full:
Q: What was the impetus behind this bill? Have certain actions been taken by the president so far that raise concerns?
A: “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 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.”
Q: In regards to the section of the bill referring to “a pandemic or other health emergency”, are you concerned that the state refusing to implement an order relating to public health could lead to a halt of federal aid or assistance to the state in an emergency?
A: “Yes, I could see the Federal government threatening to withhold a percentage of federal funds as they tried to do in South Dakota vs. Dole in 1987.” View the judgement and the appeal for this case.
Q: The wording of this bill seems rather broad in definition. Phrases such as anything at “restricts a person’s rights” could be very difficult to define. Is this intentional in the wording, and do you foresee any potential negative consequences to leaving the definition so open to interpretation should it pass?
A: “This pertains to our rights that are protected under the U.S. Constitution.” (Seeking further clarification on this answer, we asked Aylward to elaborate on a hypothetical situation in which a mask mandate was ordered, and how that would be interpreted by this bill) “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.”
Q: If this were to pass, what would be the status of an executive order while the Executive Board and/or the attorney general is reviewing it?
A: “The order would be null and void until the review was finished and deemed appropriate.”
Q: (A follow-up to the previous question): Does this mean that the order is instituted as normal until it is selected for review? Would the Executive Board have to review every executive order issued by a president, or would this only apply to orders that the board thinks there may be an issue with?
A: “It would mean that the order would be determined null and void until deemed acceptable by the E-board. As of right now, it would only be the ones that they would think may be a problem.”
Q: If this were to pass, how will it benefit South Dakota?
A: “If this were to pass, it 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;”
Q: If this were to pass, what legal challenges do you expect to come from the federal government?
A: “That I cannot answer, but I am sure they will not like it. I’ll again reference South Dakota vs. Dole in 1987. So, we need to ask ourselves; do we run our state appropriately and follow the constitutions the best we can, or do we tie ourselves to federal dollars and continue to be unconstitutionally tied to the federal government?”
Q: Would the governor and attorney general need to rely solely on the executive council to start the process? Could the governor order the executive order to be reviewed, or the attorney general decide to review it independently?
A: “The process would always start with the E-board.”