OPINION: Bill passes Tennessee House that could seek to nullify presidential executive orders

Clint Cooper, Chattanooga Times Free Press, Tenn.
·4 min read

Apr. 6—The Tennessee House wants United States President Joe Biden and all future White House inhabitants to know it will have an eye on any executive order they sign.

The House passed a bill 70-23 Monday that would allow the General Assembly's Joint Government Operations Committee to review any presidential executive order if it has not been approved by a vote of Congress and signed into law under traditional constitutional provisions.

If, upon review, committee members have concerns about the order, they may then recommend to the state attorney general and the governor that it be examined by the attorney general to determine whether the state should seek an exemption from the order's application or seek to have it declared unconstitutional.

"If deemed unconstitutional, we can claim exemption from the executive order," state Rep. Mark Hall, R-Cleveland, the bill's sponsor, said in a House Public Service Subcommittee last month.

Don't look for immediate action to rescind Biden executive orders to stop building the border wall, expand immigration, cancel the Keystone XL pipeline or any of the record number of executive orders the president has signed, though. The bill must still pass the state Senate and be signed by the governor to become law.

Rep. Bud Hulsey, R-Kingsport, voiced during a vote on the bill in the State Government Committee last week what many Republicans across the country fear about unchecked executive orders from the administration.

"It's my contention that if state legislatures don't start to get involved in processes, we're going to get steamrolled," he said.

The measure that passed the House was missing its last third, it having been sliced off in an amendment by state Rep. Rick Eldridge, R-Morristown. That deleted provision would have prohibited any state agency or elected official from implementing a presidential executive order if it related to a pandemic or other health emergency, the regulation of natural resources, the regulation of the agricultural industry, the regulation of land use, the regulation of the financial sector, or the regulation of the constitutional right to keep and bear arms.

Hall told this page Tuesday he liked the wording of the bill as it was but doesn't feel like it was watered down without the provision.

"I feel good about it," he said. "It represents my constituents in Cleveland and Bradley County. I think it's a home run."

The bill passed largely across party lines, with two Democrats joining Republicans in voting for it.

Hall said although the bill hasn't "picked up momentum" in the Senate, he believes it eventually will pass.

From our standpoint, the legislation appears to codify actions that in the past were taken by state attorneys general with promptings from governors, legislators or issue-oriented organizations.

Tennessee is not the first state to put into action concerns about Biden's executive orders.

Oklahoma's state House passed a similar bill last month. However, it deems that if the state attorney declines to pursue action on a specific executive order upon request of the legislature, the legislature can declare the action unconstitutional with a majority vote.

The Sooner State's bill leaves in the provision that was stripped out of the Tennessee bill and adds additional protection against agencies or officials implementing executive orders for the regulation of education and intramural or other extracurricular sports sponsored by an institution of higher education, a school district or a charter school. It now awaits action in that state's Senate.

Similar bills also were introduced in both North and South Dakota. Both bills include the provision deleted from Tennessee's House bill.

"This isn't just a President Biden issue but rather an overall executive overreach issue that we've been experiencing for a long time," South Dakota state Rep. Aaron Aylward, R-Harrisburg, told KELO-TV. "The U.S. Congress has abdicated their duty for a long time in different areas. This bill is simply setting up a process to nullify acts that would be unconstitutional. When looking at the U.S. Constitution, the president only has the powers that are laid out in Article II."

In North Dakota, the House and Senate passed separate versions of the bill but could not agree on the last version passed, so a conference committee was appointed last week to meld the two versions.

The South Dakota House passed the measure, but the Senate put it off until what it terms its 41st legislative day, which essentially killed it since the legislature only meets for 40 days.

Hall said when an order comes out of any presidential White House that "isn't law, that gives us some reason for concern. It deserves a second look." The exam by the Joint Government Operations Committee and the attorney general offers that second look "to make sure we're not off base."

"We just don't want to be strong-armed," he said.