Reserved by the states: North Dakota pushes against executive orders
The prolific use of ink in the few weeks of President Biden’s term in office has triggered some state representatives to work to buoy states’ rights in reaction to the recent outpouring of executive orders. But the intent of bolstering states’ rights – and limiting the federal government – has been debated since the original gathering at Independence Hall.
Tom Kading is a patent attorney and state legislator from Fargo, N.D., and the primary sponsor of House Bill 1164, which addresses the state’s rights in reviewing and enacting presidential executive orders.
The original text of the bill allowed for legislative management (the administrative arm of the legislative process) the right to review any executive order that has not been affirmed by a vote in Congress, as prescribed by the Constitution, and recommend it to the state attorney general and governor for further review. The bill particularly addresses executive orders that restrict rights of an individual, relate to a pandemic or health emergency, regulate natural resources, the agricultural industry or the use of land, relate to the financial sector, or regulate the constitutional right to bear arms.
Kading says the root of the bill is to protect the rights of the state to not have to use their resources to enforce laws that are unconstitutional or detrimental to the state, which have not gone through the Constitutional approval process involving Congress. He says it is not just a reaction to the Biden administration, but a movement to limit big government and return rights to the states.
“The last three presidents all came out and said they want less executive orders – but then all issued their own executive orders,” he says. “Biden came in and he issued a lot of them – particularly concerning to North Dakota are those affecting our coal, oil and agricultural industries. We are right in the crosshairs of what’s going on in Washington, and a lot of that is going to be detrimental to our economies.”
The intent of the bill is to reserve the right to not enforce actions that are unconstitutional, but also those that infringe on the rights of an individual if they have not gone through the Congressional approval process. “If an EO came out that put a $500 tax on each gun, even if that is constitutional, I don’t want to have to use the resources of the state of North Dakota to have to enforce such an action,” says Kading.
The Tenth Amendment Center is a national organization dedicated to states’ rights, as expressed in the United States Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Michael Maharrey is communications director for the Tenth Amendment Center. He says the intent of the bill is not new and he has seen similar legislation before in other states.
The intent goes beyond constitutionality, and also deals with allocation of state and local resources.
“You could even take constitutionality out of the equation,” says Maharrey. “The fact of the matter is, a state has the authority to review anything the federal government does and determine if it will enforce or implement that program.” The principle is known as “anti-commandeering,” and Maharrey notes that the Supreme Court has held since 1842 that the federal government cannot force states to use personnel or resources to enforce federal laws or implement federal programs. “This is a perfectly legitimate right for the states,” he says, adding that the “supremacy clause” of the Constitution is one of the most frequently cited but misunderstood concepts, and that federal supremacy does not mean simply any edict issued by someone in federal government.
“It’s a powerful tool,” says Maharrey. “The federal government relies on state and local government to enforce almost every action they take and states have the right to effectively refuse to cooperate.”
Although Maharrey says he has seen similar actions pursued by other states, he has not seen a bill like this pass before. “It’s a positive move that they are looking at these things. There’s a vast array of federal overreach out there and this is a way a state can take a step back and retain some of its sovereign authority.
Kading says there was a trend in the movement to fortify states’ rights, even before Biden got into office. “People recognize D.C. is a total mess, regardless of party, and there’s a growing movement to reinforce the mechanisms of states’ rights to keep federal government from becoming a big, bloated mess.”
In South Dakota, state representative Aaron Aylward introduced House Bill 1194, a piece of legislation similar to its northern counterpart to limit federal executive orders. Other states have bills in the process on issues such as limiting federal gun control regulations, banning facial recognition, limiting warrantless search and seizure, limit collection of data, and block unconstitutional military deployments.
“EOs were meant to be used in times of urgency, not meant for legislative activities – but that’s what they’ve turned into in the last 15 years or so. If a law needs to be passed at a federal level, whether I agree with it or not, it’s important that proper channels be used,” says Kading.
Kading’s original bill was amended in committee and changed to state that an executive order can only be unenforced if warranted by a court – which is exactly how things exist today. Although the bill is in effect watered-down and ineffective in its current amended form, if it passes the House there are still possibilities to amend it back to its original state in the Senate.
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