A few weeks ago, I suggested making New Hampshire a 2A Sanctuary State. Rumor has it there is an interest in the idea. Yes, both the Federal Constitution and our own already do that, but sometimes you need a thing, like giving the State AG Power to Nullify Federal Executive Orders.
It should not be that hard to do. There’s ample ground upon which to stand going back to Thomas Jefferson, with some help from the Tenth Amendment Center.
[T]he general government is not the final and authoritative judge of its own powers, since that would make the government’s discretion, and not the Constitution, the measure of those powers-but rather the parties to the contract, the states, have each an equal right to judge for themselves whether the Constitution has been violated as well as “the mode and measure of redress”-since there is no common judge of such matters among them.
We don’t need more than that, but then we do. State Legislatures will find executive branch bureaucrats often unwilling to do things without a nudge.
Blocking federal law with nullification is permissible, and Executive Orders have been “creating or subverting” law for years. That needs to stop, and one way to do that is to embrace your State’s nullification powers.
Every state has them, but few exercise these powers. And more often than not, the legislature will need to “encourage” the executive to do its job.
South Dakota is doing just that. The legislation would authorize the Office of the State Attorney General to declare Federal actions as unconstitutional and, as such, unenforceable in the state.
The bill specifies that Attorney General Jason Ravnsborg could exempt South Dakota from any law or order “that restricts a person’s rights or that is determined … to be unconstitutional” if the law or order relates to 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
I think that is a good start.
New Hampshire’s Legislature has been looking at ways to claw back powers ceded to our Governor for use in Emergency Orders. That’s necessary, but we should be considering something like what South Dakota is doing as well. Get it into statute. Failing to do so leaves room for the G to say, ‘Nah, I’m not allowed to do that,’ as with the ongoing Windham Election Scandal (even though he is).
And while I can’t see Chris Sununu signing off on giving back any of his existing authority or the Republicans as a whole doing everything necessary to take it back, this Executive Order nullification thing might be something upon which they could agree.
Democrats will hate it, but they ought to love it. Mr. Trump’s stream of Executive Orders (EOs) had them pissing and moaning for four years after the Obama ‘Pen and Phone’ love affair.
I admit I was happy to watch President Trump use the EO to undo EO’s by Obama, but now Obiden is just reversing them and then some.
If an Executive Order is limited by existing law, that’s one thing. Every Trump EO I read made it plain that his orders were restrained by existing law. He put it writing in the body of the document.
I can’t say the same for Obama or Biden, and we know Obama had any number of them that bypassed law as written by Congress and signed by previous presidents. DACA and border security is one huge example. But in all cases, this abuse needs to be curtailed.
Congress has no interest even when ‘Republicans’ have majorities, so the State’s need to step up and take back themselves.
South Dakota is leading the way again, and New Hampshire should consider joining them.