South Dakota Republican Bill Seeks to Nullify Biden Executive Orders

February 8, 2021 Updated: February 8, 2021

A bill introduced in the South Dakota state legislature would grant the state’s attorney general the authority to determine whether President Joe Biden’s executive orders are constitutional and potentially nullify them at the state level.

The proposed legislation, which describes itself as an act to “authorize the review of certain executive orders issued by the President of the United States,” was sponsored by a group of 15 Republican lawmakers, including 2 state senators.

If passed as written, the bill would allow the Executive Board of the Legislative Research Council to review any executive order, which by nature requires no approval from Congress. Upon review, the Board may refer the order to the attorney general for further examination. The attorney general will then determine whether South Dakota should seek an exemption from the application of the order if deemed unconstitutional.

According to the latest version of the bill, South Dakota should be able to exempt itself from any law and order that “restricts a person’s rights” or that is determined by the attorney general to be unconstitutional if it falls into any of six specific categories. Those categories are laws related to 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; and the regulation of the constitutional right to keep and bear arms.

The legislative effort to potentially exempt South Dakota from the president’s executive orders comes after the decision to end the $8 billion Keystone XL pipeline project, part of the Biden administration’s plan to address the “climate crisis.” According to the original plan, the 1,200-mile pipeline would cross South Dakota and deliver more than 830,000 barrels of oil each day from Alberta, Canada, to Nebraska, where it would connect existing facilities to reach the refiners on the Gulf coast.

Gov. Kristi Noem, a Republican, said last month that she was “very disappointed” about Biden’s order to cancel the pipeline, which she called “wrong policy” on energy and the environment.

“This pipeline is not only just creating jobs and helps us secure an affordable energy supply, it also is safer for our environment,” Noem said at a press conference. “History has proven over and over again that the way we are transporting our energy supply today is compromised in many ways and it would be safer through a pipeline than on trucks and trains.”