PIERRE, S.D. (KELO) — At first glance, an executive order that Governor Kristi Noem signed Monday afternoon appeared to merely outline three pages of what she thinks “should” be done in response to the fast-developing COVID-19 crisis in South Dakota.
It says what all South Dakotans “should” do. What all employers “should” do, including any enclosed retail business that promotes public gatherings. What all healthcare organizations “should” do. What all local and municipal governments “should” do.
The order reads like a suggestion list — until you notice the reference to a specific chapter of state law.
Emergency Management is the title of 34-48A. And after you’ve read the 54 sections, you realize that the Legislature has given a governor permission to give to herself nearly absolute power.
Especially noteworthy is the section where lawmakers have granted almost unchecked authority to the governor in time of disaster, terrorist attack or emergency.
All nine situations in that section are worth careful consideration, but especially this fifth one: “May control the ingress and egress in a designated disaster or emergency area, the movement of vehicles upon highways within the area, the movement of persons within the area, and the occupancy of premises within the area.”
In other words, total control.
Right now, with the COVID-19 virus making its way, invisibly, through county after county, that total control covers all of South Dakota.
Well, almost all — the governor’s order specifically says it doesn’t apply to what she described as “sovereign nations within the borders of South Dakota.” Those are the nine tribal governments, which she suggests should look to their own tribal law.
But back to the state law: The section’s final sentence says, “The powers granted to the Governor under this section shall remain in effect for a period of six months and may be restored for one or more successive six-month periods by declaration of the Governor that the conditions permitting such powers persist.”
That means, unless the Legislature or the courts make her stop, the governor’s authority doesn’t have to end until the COVID-19 emergency ends.
The governor and news reporters seemed to be talking on two different levels Monday afternoon when she held her second briefing of the day.
“My job as governor is to set a baseline for what that should look like from border to border in the state of South Dakota, and this is what I’m telling our communities and counties to do,” Noem said to one reporter. When he asked if she could force somehow force compliance, she replied, “This is what I’m telling them to do.”
Asked by another reporter if she was letting governments, organizations and businesses have a choice, Noem replied, “I’m telling them what they should be doing in this state and our local leaders have the ability to make decisions for their communities as well. And I would point to what happened in Beadle County, how they addressed their community spread situation with the county commission and the city council making a decision to come together in a joint meeting and passing resolutions and ordinances, which are enforceable, that they can do to make sure that they have compliance within their area of jurisdiction.
“This executive order is detailed. It gives specific guidelines and recommendations on what should be going on in the state of South Dakota. I’ll continue to tell this state what I think they should be doing and what everybody should be doing, and we’ll give that type of guidance. It also specifically says to follow CDC guidance as the best information that we have on how we can control this virus and protect as many people as possible.”
Responding to a third reporter, Noem gave this explanation: “What this executive order is doing, is telling a business, If you wish to still operate in the state of South Dakota, this is what you need to do.”
Later a fourth reporter asked what the consequences would be if a business or a municipality failed to follow her order. She answered, “This is a baseline that I’m setting for the state of South Dakota. If a business wants to operate in the state, they will follow the direction of this executive order.”