Liberty Blog
Growing Number of State Legislatures Introducing Bills to Review Constitutionality of Federal Executive Orders
Pennsylvania legislators may wish to consider what is emerging as a model approach, taken by three other states so far, to try to limit federal executive orders by means of "executive order review" legislation.
On February 25, 2021, the Oklahoma house became the second state after North Dakota to pass a bill which permits their state legislature to declare federally issued executive orders and regulations unconstitutional by Joint Resolution. In addition, even absent such a joint resolution of unconstitutionality, the state legislature may jointly refer federal executive orders to the State Attorney General to consider legal actions to invalidate the measure in question. A similar house bill is pending in South Dakota. (See links below).
The executive orders which would be subject to review and potential invalidation would generally be limited to those which have not been ratified by Congress, because such Executive Orders do not originate with authority from the U.S. Congress. Although the three proposed State bills differ somewhat as to the subject matter of the executive orders which may be reviewed, and the procedures for such reviews, the general categories of executive orders covered by the proposed bills include (1) pandemics or other health emergencies; (2) the regulation of natural resources, including coal and oil; (3) the regulation of the agriculture industry; (4) the use of land; (5) the regulation of the financial sector as it relates to environmental, social, or governance standards; and (6) the regulation of the constitutional right to keep and bear arms.
Passage by the Senates and signature by the Governor of the respective states would be needed before such measures become law. Even once enacted, it is possible that the courts may be called upon to determine whether such state enactments themselves are constitutional exercises of State authority under the 10th Amendment, or under principles of federal preemption.
