The legislative research council is withholding what they call an “unconstitutional” bill.
One ranking Senate Republican calls the move “virtually unprecedented.”
It has to do with the separation of powers.
In 1939 the state legislature gave the executive branch the ability to draft administrative rules. Those rules must be based on state statute passed by the legislature.
One bill this year seeks to amend an administrative rule through legislation.
Wenzel Cummings is Code Council for the Legislative Research Council.
“When you pass a statute that authorizes rule making you’re legislating. When an agency promulgates that rule in accordance to that statute, they are effectuating that law—they are executing it,” Cumming says. “The legislature may not—under our constitution—both legislate and execute at the same time.”
Cummings suggests either a constitutional amendment or drafting and passing a bill based that changes an administrative rule the legislature doesn’t like.
Each bill is supposed get a hearing in the South Dakota capitol. LRC is holding up a bill that amends administrative rule.
That doesn’t sit well with Republican Senate President Pro-Tempore Brock Greenfield. He brought a change to legislative procedure rules to allow amending administrative rule, but that change got rejected.
“The pocket-veto now is in effect in South Dakota. And if one person chooses to say, ‘In my opinion this is unconstitutional.’ It doesn’t get a hearing. That bill will not be heard,” Greenfield says. “I think the people lost power today by virtue of their legislative body not exercising its power.”
Greenfield says the legislature’s been amending administrative rule the last 20 years. As chair of the Senate Legislative Procedure, he says he’s considering the option of the Senate voting to direct LRC to introduce the bill.