GOP-Controlled State Legislatures Weigh ‘Constitutionality’ of Presidential Executive Orders

John Haughey
By John Haughey
December 28, 2022NTD News Today

Rep. Brian Seitz (R-Branson) will enter his third session when the Missouri General Assembly convenes in Springfield on Jan. 4 and, for the third time, he is sponsoring a bill that would require state lawmakers to scrutinize and, potentially disregard, some presidential executive orders.

Under his proposed House Bill 174, the Missouri House must review all presidential executive orders not affirmed by a Congressional vote to determine if “they are, in fact, Constitutional,” Seitz told The Epoch Times.

If the Missouri House has questions about the constitutionality of a presidential executive order, the bill requires it be referred to the state’s attorney general to determine if it “restricts a person’s constitutional rights.”

“I’m a firm believer in states’ rights, and am very concerned about losing our authority [as a legislature] to federal overreach,” Seitz said.

That purview would apply to any presidential executive order that relates to “regulation of business activities or personal behaviors during a pandemic or other public health emergency,” natural resources, the agricultural industry, land use, “the financial sector through the imposition of environmental, social, or governance [ESG] standards, and “the constitutional right to keep and bear arms.”

“There are three branches of the government—not one,” Seitz said, stressing if adopted, the measure “would cover executive orders from presidents of either party.”

But make no mistake: The bill—along with Senate companions filed by Sen. Rick Brattin (R-Harrisonville)—is hardly bipartisan in genesis.

Since Democrat Joe Biden was sworn in as president in January 2021, similar bills have been introduced in at least nine other Republican-controlled state legislatures: Alabama, Utah, Nebraska, South Dakota, North Dakota, Oklahoma, Tennessee, Iowa, and South Carolina.

The Oklahoma and Tennessee bills advanced through committees to chamber votes in 2021 but ultimately were not adopted.

American Legislative Exchange Council (ALEC) senior director for Homeland Security, International Relations, and Federalism Karla Jones said the bills are in response to “federal overreach that infringes on state sovereignty.”

Washington-based ALEC is usually the generator of conservative policy guides and model bills that state lawmakers carry into sessions.

But in reference to presidential executive orders, the council adopted its model policy regarding presidential executive orders in December 2021 in response to bills submitted by state lawmakers in six states during that year’s sessions.

“We just saw [the bills] proliferating because executive orders were becoming such a problem,” Jones told The Epoch Times. “There was a lot of alarm among state lawmakers who care about federalism and worry about federal overreach.”

During his first six months in office, “Biden was on track to issue more executive orders than FDR [Franklin Delano Roosevelt],” she said. “He has since leveled off considerably and is now pretty equal with President Donald Trump, who also issued more executive orders than we thought was prudent.”

According to Ballotpedia, as of Dec. 22, Biden had signed 105 executive orders. During his four years in office, Trump issued 220. FDR signed more than 3,500 in his 12 years in office.

Jones said it is easy to disparage a president’s use of executive authority, but it’s often exerted by default.

“Congress doesn’t have the political will to do the hard work, so many presidents rely on executive orders,” she said. “George Washington had, like, one. Single-digit executive orders,” during a presidency “was typical for the first 50 years of our history.”

ALEC’s policy fine-tunes the 2021 versions of the bills. Rather than tie them to specific issues, such as gun owners’ rights, the policy is a guide for bills “that could be used in any state” across a range of issues, Jones said, including by Democrat-controlled legislatures.

“Blue state may care about federal overreach in other areas.”

Seitz’s proposed HB 174 is similar to Iowa’s HF 815, filed in 2021 by Rep. John Wills, (R-Spirit Lake), which would have required Iowa to disregard, or not enforce, any presidential executive order related to a public health emergency, firearms, land-use, or regulation of natural resources, the agricultural industry, and the financial sector, that “restricts a person’s rights.”

HF 815 would also have accorded the Iowa Legislative Council authority to review the constitutionality of presidential executive orders and refer its conclusions to the state’s attorney general or governor’s office.

Oklahoma Rep. Jay Steagall (R-Yukon), sponsored a 2021 resolution that claimed the U.S. Constitution’s 10th Amendment allows states to claim sovereignty when it comes to discarding presidential executive orders.

Neither was adopted.

There is substantial case law regarding presidential executive orders limits and constitutionality, according to the non-partisan Congressional Research Service, most notably 1952’s U.S. Supreme Court ruling in Youngstown Sheet & Tube Co v. Sawyer, which established the framework for analyzing whether a specific executive order is “a valid presidential action.”

Executive authority has been a significant issue in state legislatures since the 2020 pandemic, although the vast majority of legislation has been directed at gubernatorial powers.

According to the National Conference of State Legislatures (NCSL), lawmakers in 36 of the 46 states who convened in 2022 filed at least 156 bills or resolutions related to gubernatorial and public health executive orders in the wake of the COVID-19 pandemic.

Most proposed structural changes in laws regarding “states of emergency” and emergency orders, redefining how long they can remain in effect, expanding legislature oversight, and how executive actions can be terminated and extended.

Arizona, Florida, Louisiana, New Hampshire, and Virginia were among the state legislatures that enacted new laws related to executive orders and “states of emergency” during their 2022 sessions.

ntd newsletter icon
Sign up for NTD Daily
What you need to know, summarized in one email.
Stay informed with accurate news you can trust.
By registering for the newsletter, you agree to the Privacy Policy.