South Dakota Republican drafts bill to nullify Biden’s executive orders

If a state refuses to enforce an executive action, it could prompt a messy court fight

A state representative in South Dakota wants a new law giving the state the power to nullify executive orders from the Biden administration it deems unconstitutional, heightening the chances of a conflict with the White House in a state that has already vowed not to enforce any potential federal mask mandate. 

State representative Aaron Aylward, a Republican from Harrisburg, introduced the measure, HB 1194 at the end of January. It would bar the South Dakota government from enforcing any executive order “that restricts a person’s rights or that is determined by the attorney general to be unconstitutional,” if they meet certain criteria.  

“This isn’t just a President Biden issue but rather an overall executive overreach issue that we’ve been experiencing for a long time,” Mr Aylward told KELO. “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.”

Nearly any executive order would be ripe for review under the law, which says it applies to directives about “a pandemic or other public health emergency,” as well as gun rights and “regulation of the financial sector through the imposition of environmental, social, or governance standards.”

• 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

That would include any attempts at a national mask mandate, the representative told KELO.

“This pertains to our rights that are protected under the US Constitution,” he said. “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.”

If the bill becomes law, it would mark a dramatic provocation against the White House. Normally, federal courts, or to some degree Congress, are the ones that decide whether executive orders and other presidential actions, which carry the force of law, are unconstitutional.

And in cases where states defy federal policy, rarely used tools can kick in. For example, Congress once withheld a portion of federal highway funding from South Dakota because it didn’t have its drinking age set at 21. And during the Civil Rights era, after years of inaction, presidents used armed US Marshals to enforce federal rules around racial integration in schools being resisted by Southern states.

The bill shows the latest way South Dakota and the White House are moving in different political directions. The state’s Republican governor, rising star Kristi Noem, has taken a largely hands-off approach to the pandemic, issuing mainly voluntary public health rules, and recently would not say on the record whether she believed Joe Biden won a free and fair election.

She’s also said she wouldn’t enforce a federal mask mandate, though it’s unlikely the president has legal authority to issue one on his own anyway. So far, Mr Biden has stuck to mask orders more clearly in his purview, like declaring masks mandatory on federal property and at transportation facilities like airports that serve as entryways into the US.