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HB 1093: Pischke Declares Constitution Takes Precedence over Local Ordinance

In more feckless posing, Representative Tom Pischke (R-25/Dell Rapids) proposes the absolutely useless House Bill 1093, which purports to revise the limitations on municipal governments’ power to promote health and suppress disease.

SDCL 9-32-1 says, simply, that “Every municipality shall have power to do what may be necessary or expedient for the promotion of health or the suppression of disease.” No duh—that’s a basic function of any government.

HB 1093 makes a simple LRC style-and-form revision, reworking the shall into a may and firming up the may be into an is:

Every Each municipality shall have power to may do what may be is necessary or expedient for the promotion of health or the suppression of disease… [2021 House Bill 1093, excerpt from original language, filed 2021.01.26].

But then, as appears to be Pischke’s wont when he isn’t fronting for the angry dads’ movement, the Dell Rapids Republican launches into his Founding Father fetish and rehashes the Constitution in state law:

so long as, in the absence of an act of martial law having been declared, any measure so taken, including by ordinance or a resolution, does not prohibit or interfere with the free exercise of religion, abridge any person’s freedom of speech, or of the press, or of the right of the people to peaceably assemble, or of the right of the people to petition the government for a redress of grievances under the First Amendment to the United States Constitution, or prohibit or interfere with activities within any person’s residence or privately held business, or interfere with any person’s right to bear arms under the Second Amendment to the United States Constitution [HB 1093, excerpt].

Umm… maybe Pischke needs to take Kristi Noem’s civics class… or maybe the problem is that Tom did pay as much attention to civics as Kristi did.

The United States Constitution is the law of the land. Even if federal, state, and local laws don’t explicitly mention the Constitution, federal, state, and local laws are still subject to the Constitution. We don’t have to write references to Constitutional provisions into any law for those Constitutional provisions to have overriding effect. If we did, Pischke’s HB 1093 would be laughably incomplete, as it would effectively say that local health ordinances must respect freedom of speech and bang-bangs but can take away due process and jury trials, force residents into slavery, limit United States Senators to two two-year terms, and cancel the impeachment trial.

A local public health ordinance cannot violate the First or Second Amendment any more than it can violate the Fourth, Fifth, or Fourteenth Amendment. That’s how law works. HB 1093 adds not one iota of practical effect to the supremacy of the Constitution over local law. HB 1093 is a ridiculously ignorant bill that only introduces unnecessary verbage into statute.

2 Comments

  1. Mr. Bill 2021-01-28 11:14

    The line “prohibit or interfere with activities within any person’s residence or privately held business” doesn’t seem to address the constitution: it seems to see that communities like Brookings that are doing things like restrict capacity in bars to 50% would no longer be allowed to do so. So it seems to be explicitly prohibiting something that is happening right, not just adding unnecessary verbiag. Am I reading that correctly?

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