Governor Kristi Noem issued two executive orders Monday. One does things to address the coronavirus pandemic; the other does nothing.
Executive Order 2020-07 tackles covid-19 with good old-fashioned Republican deregulation. Acting under the one-month state of emergency she declared on March 13, Governor Noem is suspending a swath of administrative rules to allow the Department of Social Services to provide health care to the poor via telemedicine and allow substance abuse treatment and mental health care to be provided by telemedicine. EO 2020-07 suspends one specific rule that limits state payments to pharmacies to once a month, saying that this rule limits pharmacies’ “ability to dispense certain necessary medication in a timely manner.” The order suspends fair hearings rules governing the state’s Medical Assistance program, thus repealing time limits on when parties can file for hearings to challenge Department of Social Services action or inaction and the requirement that the state respond with a final decision within 90 days.
Just in time for the spring thaw, EO 2020-07 lifts load limits for trucks hauling pandemic relief supplies. During this emergency, haulers of relief supplies will not have to split their heavy loads or pay the $25 fee for each overweight load. Haulers still can’t exceed the legal load limit by more than 10%, and they need to avoid bridges posted with reduced weight limits (because we can repave busted-up asphalt later with all the laid-off athletes and waitresses the Works Progress Administration will be hiring next year under the Biden New Deal, but overloading a bridge will put your medical supplies in the Jim River).
In its mildest deregulation, EO 2020-07 invokes the Emergency Management Assistance Compact, which recognizes the out-of-state licences of any professional or skilled worker—not just doctors and nurses but electricians, architects, anyone who needs license—who comes to help with pandemic response in South Dakota.
Now I suppose you could argue that Executive Order 2020-07 does actually do anything; the Governor orders various state agencies not to enforce certain rules. But refraining from enforcing these rules opens the door for useful actions by other actors. Fair enough.
The Governor’s second order of the day, Executive Order 2020-08, doesn’t even promise fruitful inaction. In this second Executive Order, our Executive does not order any agency of the state to do anything. Governor Noem just lists a bunch of things that we “should” do. Not “shall,” as in “hop to it, right now!” but “should,” as in, “I’d like some things to happen, but I’m not about to risk my political neck by enforcing them.”
In EO 2020-08, Governor Noem says we all “should” keep clean and “encourage others to do so,” “know the signs and symptoms of COVID-19,” “understand” who’s most susceptible to the coronavirus, stay away from each other (but “support businesses who are adjusting their business model to reduce the spread” of the disease… which means support this blog, since I’ve shifted my business model to write more about the coronavirus and interact entirely with readers and donors online, thus reducing health risks!), assist doctors and cops, brace for at least eight weeks of this emergency, “innovate and continue to demonstrate entrepreneurial excellence,” encourage our staff to work at home (all South Dakotans should do this? all South Dakotans have staff?), and “offer… special shopping times” to old folks and others vulnerable to covid-19.
EO 2020-08 turns to “enclosed retail business[es] that promote public gatherings” and tells them they “should” suspend or modify their business practices and look for ways to support critical infrastructure.
EO 2020-08 tells healthcare organizations that they “should” follow CDC guidance, postpone non-essential elective surgeries.
Finally, EO 2020-08 tells local governments they “should” follow CDC guidance, “restrict public gatherings of ten people or more, unless it is necessary,” “encourage entrepreneurial innovation” to protect jobs and the free market, and protect critical infrastructure.
Generals in battle don’t usually hop on a tank and say, “Hey, guys! You should take that hill!” “Should” leaves us wondering if the general really means it… during which period of confusion the enemy is able to lob a few more shells and knock a few more of our guys off.
If you’re going to issue orders, Kristi, issue orders.