New South Dakota bill seeks to nullify ‘unconstitutional’ Biden executive orders

"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 9 Constitution of the United States," the bill states.

"Upon review, the Executive Board may recommend... that the order be further examined by the attorney general to determine the 12 constitutionality of the order," the proposal continues.

The bill further states that the Attorney General would "determine whether the state should seek an exemption... or seek to have the order declared to be an unconstitutional exercise of legislative authority."

No order deemed unconstitutional would be enforced in South Dakota under the bill.

However, the bill limits its scope to only six categories. Unconstitutional executive orders would only be unenforceable in the state if they regard public health emergencies, natural resource regulation, agricultural regulation, land regulation, financial regulation, or gun control.

It is unclear if such a law would be legally binding, as federal law supersedes state law in the United States.

The bill comes after President Joe Biden issued an unprecedented number of executive orders in the early days of his presidency. Such executive orders involve a number of categories specifically outlined in the bill, including mask mandates on federal property, regulations limiting oil and gas extraction on federal land, and the cancellation of the Keystone XL pipeline which was planned to run through South Dakota,.

However, according to state Congressman Aaron Aylward, who introduced the bill, the proposed legislation is not specific to President Biden.

"This isn't just a President Biden issue but rather an overall executive overreach issue that we’ve been experiencing for a long time," Aylward said. "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."

Aylward did note that a potential nationwide mask mandate is one of the targets of the bill. "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," he claimed.

Aylward further said that he "could see the Federal government threatening to withhold a percentage of federal funds" if South Dakota refused to comply with mask mandates.

Aylward referenced a 1987 Supreme Court case known as South Dakota v Dole, in which the South Dakotan government challenged a law passed by Congress limiting federal funds to states which did not raise their drinking ages to 21.

While the Supreme Court ultimately upheld the constitutionality of the law, the case challenged an act of Congress rather than an executive order. The judges ruled that Congress has the ultimate power to decide how federal spending is distributed, making the law constitutional, a parameter which would not apply to a potential executive order withholding national funding to states which do not follow mask mandates.

"If this were to pass, it would give South Dakota much of its power back," Aylward insisted.