H.B. 1164 was introduced in the North Dakota House of Representatives by State Rep. Tom Kading and eight other Republicans. The legislation instructs the state's attorney general – currently, the Republican Wayne Stenehjem, who has been in office since 2000 and is the longest-serving attorney general in North Dakota history – to review the constitutionality of each executive order issued by the president.
If the attorney general finds that an executive order is unlawful or unconstitutional, it would be "nullified" and any state, county or local agency or any other publicly-funded organization would be prohibited from enforcing such an order. (Related: KEEP FIGHTING: Texas AG Ken Paxton vows to fight Biden's unconstitutional orders.)
H.B. 1164 highlights six issues. If an executive order is related to one of these issues, the attorney general is called to review it immediately and make a ruling on its constitutionality. These six issues are:
- Pandemics or other public health-related emergencies.
- The regulation of natural resources, including oil and coal.
- The regulation of the agriculture industry.
- How public land is to be used.
- The regulation of the financial sector, especially if it relates to social, governance or environmental standards.
- The regulation of the constitutional right to keep and bear arms.
H.B. 1164 only covers executive orders. This is why Republican State Rep. Sebastian Ertelt introduced H.B. 1282, which would create a "Committee on Neutralization of Federal Laws."
This committee will be comprised of the leaders of the state legislature and several of their appointees. The committee will review federal laws and executive orders. If the committee finds that a law or regulation is unconstitutional, the North Dakota Legislative Assembly would be compelled to pass a concurrent resolution on whether the transgressing law or executive order should be nullified.
Similar to Kading's bill, after the legislature passes the resolution, state, county and local agencies would be prohibited from enforcing the legislation or order.
As of Thursday, Feb. 4, both H.B. 1164 and H.B. 1282 are being reviewed by the House of Representatives' Judiciary Committee. Given the fact that the North Dakota Republican Party has a supermajority in both state houses – 80 to 14 in the House and 40 to 7 in the Senate – and the state's governor is a Republican, it is unlikely either legislation will be blocked by Democrats.
South Dakota following North Dakota's example
North Dakota is not alone in attempting to pass legislation to protect itself against federal encroachment. In South Dakota, Republican State Rep. Aaron Aylward is attempting to emulate his northern brethren by introducing H.B. 1194, which "outlines a process of review for any presidential orders that have not been approved and signed into law by the U.S. Congress."
The bill orders the state to set up an executive board that will review the constitutionality of all presidential executive orders. This board is known as the Executive Council of the Legislative Research Board.
The process begins with the executive council reviewing the executive orders. If the council finds that an executive order is unconstitutional, it will refer the case to the state's attorney general and the governor. Both offices are currently held by Republicans.
Once the council has submitted its referral, the attorney general may examine the order to determine whether the state can either declare it unconstitutional or seek an exemption.
The bill also allows the attorney general to block the implementation of executive orders "that restricts a person's rights." It also allows the attorney general to block unconstitutional orders that involve one of the same six issues listed in its North Dakotan counterpart.
When asked by local news outlet KELOLAND what the impetus was behind the bill, Aylward answered this:
"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."
When KELOLAND asked how this bill will benefit the state, Aylward answered that "it would give South Dakota much of its power back."
H.B. 1194 has 11 co-sponsors in the South Dakota House of Representatives, and two in the State Senate. As of Feb. 1, it received its first reading in the House State Affairs Committee. While it still has a long way to go before it becomes a law, given how, much like North Dakota, both houses of the legislature have Republican supermajorities, it is likely the bill pass without too much difficulty.
Learn more about how states are responding to the Biden presidency's first days in office by reading the latest articles at JoeBiden.news.
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