PIERRE, S.D. (March 22, 2021) – Earlier this month, a South Dakota Senate committee made up completely of Republicans killed a bill that would have created a mechanism to review presidential executive orders and end state cooperation with enforcement of certain orders determined to violate the U.S. Constitution. This process would have set the stage to nullify some executive orders in effect in South Dakota.

Rep. Aaron Aylward (R-Harrisburg), along with 16 Republicans, introduced House Bill 1194 (HB1194) on Feb. 1. Under the proposed law, the state legislature’s executive board would be required to 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.”

Upon a recommendation by the executive committee, the state attorney general would review the executive order.  Under the law, the state, its political subdivisions, along with any elected or appointed official or employee of this state, would be prohibited from implementing any executive order that restricts a person’s constitutional rights or that the attorney general determines to be unconstitutional during the review.

The law would cover executive orders that relate to any of the following:

  • 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; or
  • The regulation of the constitutional right to keep and bear arms.

Passage of HB1194 would have provided a process to push back against overreaching executive authority. Immediately upon a determination of unconstitutionality by the AG, the state would be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. Because the feds lack the resources to enforce all of their laws and run all of their programs, this would likely be enough to effectively end the federal action in South Dakota in most situations, nullifying it in effect.

The Senate Judiciary Committee made up of seven Republicans voted 6-0 to kill the bill. (One senator was absent.)

IGNORANCE ON DISPLAY

I testified in favor of the bill, explaining the anti-commandeering doctrine. I emphasized that the Supreme Court has consistently held that the federal government cannot require or force states to enforce a federal law or implement a federal program. States can prohibit their agencies and political subdivisions from enforcing federal laws or implementing federal acts for any reason whatsoever, or for no reason at all. No determination of constitutionality is necessary to invoke the anti-commandeering doctrine.

In other words, the process created by HB1194 to determine the constitutionality of an executive order is really nothing but a formality. The state could prohibit the implementation of an executive order by its agencies and political subdivisions without any such determination. In fact, it could do it simply because it happened to be raining on the day the president signed it.

Despite this clearly defined, longstanding legal principle, opponents of the bill fixated on the process of declaring an executive order unconstitutional.

The spokesperson for the ACLU of South Dakota testified against the legislation. She claimed it is unconstitutional and would be struck down by federal courts. She focused exclusively on the process of declaring an executive order unconstitutional and claimed it was solely the purview of the federal courts. While I find this argument dubious at best, it’s simply not relevant to the proposed law. Again, the state can refuse to implement an executive order for any reason it pleases under the anti-commandeering doctrine.

The committee packed with Republicans sided with the ACLU.

Sen. Lee Schoenbeck was the most vocal opponent of HB1194 on the committee. His “argument” would make Rachel Maddow proud. He invoked the Emancipation Proclamation as the “most famous” executive order. According to Schoenbeck, every Southern state would have called it unconstitutional.

Schoenbeck then directly asked Aylward, “Why would you be opposed to the Emancipation Proclamation?” Apparently questioning the legitimacy of any of the hundreds of executive orders issued every year means your support slavery.

In subsequent comments, Schoenbeck called HB1194 “the most unamerican, least patriotic bill we’ll see this session.”

“This is the arguments made by the Southern states for secession. It’s exactly the same arguments, in fact. It’s opposed to the concept of a United States of America.”

This was not the argument made for secession. In fact, nullification was considered a “moderate middle road” between absolute submission to the federal government and secession. Southern states vehemently opposed northern states declaring the Fugitive Slave Act of 1850 unconstitutional and invoking the anti-commandeering doctrine while refusing to enforce it within their borders. By refusing to enforce, I mean northern states passively, and sometimes actively, blocked returning runaway slaves back into bondage. South Carolina listed northern “nullification” of the Fugitive Slave Act as one of its reasons for seceding. I would like to ask Schoenbeck why he wants to send runaway slaves back to their “masters.”

 

In the Virginia Resolutions of 1798, James Madison argued that when the federal government oversteps its constitutional limits, states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.” Or as Daniel Webster put it, stopping the federal government from committing unconstitutional acts “are among the objects for which the State governments exist.”  According to Schoenbeck, this makes Madison and Webster “unpatriotic and unamerican.”

Committee Chair Sen. Arthur Rush also opposed the bill and paraded his ignorance of the anti-commandeering doctrine for all to see. According to his bio, Rusch is a retired circuit court judge. He characterized the five foundational Supreme Court cases that make up the anti-commandeering doctrine as “instances where the federal government prohibited something,” but he then opined that there must be plenty of cases where the Court found federal actions permissible. This is, of course, true. But no case exists that allows the federal government to force a state to implement a federal act or enforce a federal law using state or local resources. And that is the entire basis of this legislation.

Sen. David Wheeler also weighed in, acknowledging that overreaching executive orders are a problem. But he placed the blame on Congress for not doing his job. This was an ironic argument coming from a person who refused to do his “duty” (as Madison called it) to defend the Constitution. He suggested not doing his job as a state legislature but instead passing the buck to the federal courts.

It was a sad display of spinelessness and obfuscation presented with poor legal reasoning, bad history and non-sequiturs.

 

 


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