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State Nullification of Guard Call-Ups Makes General Marlette’s Blood Boil; Committee Kills HB 1122

New rule: if the majority of testimony for a bill in the Legislature is coming from out of state, we should kill the bill.

House Military and Veterans Affairs followed this rule yesterday when it voted 7–2 to kill House Bill 1122, rookie Representative Aaron Aylward’s (R-6/Harrisburg) attempt to prohibit the out-of-state deployment of the South Dakota National Guard to anything other than Congressionally declared wars or emergencies. The bill itself was cribbed from out-of-state proposals along the same lines. Most of the proponent testimony came from out-of-state activists, including Dan McKnight, a pro-Trump veteran from Idaho who portrays our overseas military engagements as part of the Deep State to which Donald Trump posed a “substantive threat.” (Using “Trump” and “substantive” in the same sentence immediately trips my “pish” and “tosh” alarms.) Joining McKnight was Florida nullificationist Michael Maharrey, who compares government to kudzu, and Maryland troop-bringer-homer Scott Spaulding. McKnight, Maharrey, and Spaulding apparently have been working together to foment this fencing-in of the National Guard in legislatures across the country.

Rep. Aylward got the redoubtable Tonchi Weaver of Rapid City to come testify on behalf of South Dakota Citizens for Liberty against the co-optation of our weekend warriors into overseas adventurist imperialism, but hers was the only South Dakota voice in favor of this toehold for nullification. The only other South Dakotan testifying on HB 1122, National Guard Adjutant General Jeffrey P. Marlette, told the committee tying the hands of the Governor and the Guard was a bad idea. Starting around minute 39 in the hearing audio, Adjutant General Marlette said he heard a lot of things in the proponent testimony that “make my blood boil.” Marlette said his blood boiled most at Weaver’s suggestion that the Guard is not ready or deployable or competent, but he also took explicit umbrage at the fact that all the rest of the proponent testimony was from out of state. He noted that there has been no declaration of war since World War II, and Congress has given explicit authorization to the President to use military force by law. He said the South Dakota National Guard receives over 98% of its funding from the federal government and suggested that funding would be jeopardized by a nullification act like HB 1122. (The unstated undercard is the Golden Rule: he who provides the gold makes the rules.) Marlette responded to the proponents’ claim that more than a couple dozen states have considered comparable legislation restricting Guard deployments by noting that not one state has passed such a law.

Marlette said he’s on board with arguments to bring troops home, but he can’t stand for a bill that takes away the power of the Governor and the President to deploy the Guard to protect the nation. He also said that over the last two decades, the patriots who have signed on to serve in the ranks he oversees did not volunteer for the “South Dakota militia”; they signed on to serve their country, with full awareness that such service could be anywhere in the world.

Marlette’s in-state opposition put a fork in HB 1122. Representative Jess Olson (R-34/Rapid City) offered an amendment to clarify that HB 1122 wouldn’t impede the Governor’s authority to consent to deployments, but that amendment didn’t stop everyone on the committee but right-wing extremists Reps. Tony Randolph (R-35/Rapid City) and Sam Marty (R-28B/Prairie City) from voting this nullificationist bill down.

I think we could apply the out-of-state testimony rule to most legislation. South Dakota’s laws and lawmakers should express the will of South Dakotans. If South Dakotans aren’t coming forth asking for a law, we don’t need that law.


  1. John 2021-02-23 08:02

    It’s pathetic so much of the legislature’s and LRC’s scarce time is wasted on stupid proposals such as this one, HB1122. Every. Session. Pierre, where the learning curve is flatter than the James River Valley.

  2. Donald Pay 2021-02-23 08:58

    A legislator may propose any measure, according to the South Dakota Constitution. And South Dakota requires every bill to get a hearing. Unfortunately, that also includes these bill mill bills that are thunk up by out-of-state special interests. My own view is that the Legislature can and should require by rule some sort of provenance for bills or bill concepts. That provenance would require the legislator to disclose from whence he or she received the concept or wording for their bill draft.


    The prime sponsor discloses that he/she developed the concept of this bill, and the Legislative Research Council provided the language and bill form.

    The prime sponsor discloses that he/she sponsored this bill at the request the South Dakota Chamber of Commerce. A bill draft developed by the South Dakota Chamber of Commerce was provided to the Legislative Research Council to draft into bill form.

    The prime sponsor discloses the he/she received model language for this bill from the American Legislative Exchange Council. A bill was drafted from this model language by the Legislative Research Council.

    The prime sponsor discloses the he/she received a copy of a Nevada state law from the Citizens for Liberty. That law was drafted into bill form by the Legislative Research Council.

  3. grudznick 2021-02-23 10:46

    That’s a really good idea, Mr. Pay.

  4. RST Tribal Member at 57572 2021-02-23 10:55

    Yep, the 1 party in control does like those outside the state bill-a-makers, remember? Lisa Kaczke, Sioux Falls Argus Leader, March 5, 2020
    “PIERRE — Gov. Kristi Noem’s riot boosting bill, aimed at Keystone XL pipeline protesters, is heading to her desk for her signature after receiving its final approval in the Legislature.

    The Senate passed House Bill 1117 in a 27-8 vote on Thursday to repeal the language in Noem’s riot boosting law struck down by a federal court as unconstitutional last year and replace that language with an “incitement to riot” definition that meets legal precedent.”

    Yep, worried about an Indian uprising so this went thru like stuff through a goose. Never repealed, just modified when determined unconstitutional by the courts.

    It would be historical to see an Indian uprising on November 2022 at the voting booth… the new arrow could be the pen.

    Keep that on the down low as the 1 party in control in Pierre might change how ballots are marked; stick dipped in tar sand oil, mark ballot right handed with left eye closed with 2 or 3 forms of ID depending on the looks of the voter, and the sales slip from the last pair of shoes purchase with a notarize affidavit the shoes are being used more the 3 times a month. Yep, silly laws made by silly 1 party legislators to keep South Dakota a silly 1 party state. November 2022 cannot come soon enough to clean out the silliness.

  5. Cory Allen Heidelberger Post author | 2021-02-23 21:27

    Footnotes, links, and disclosure on bills—I like that. Subject bills to the requirements we would a freshman English paper: show us your sources. At the very least, LRC could post a drafting notebook for every bill, compiling all research reviewed while putting the bill together.

  6. Donald Pay 2021-02-24 08:41

    Cory, LRC might be able to pretty easily source their efforts in bill drafting, but I’m more interested in the sources of the material that legislators give to LRC to draft up. Who provided those sources to the legislator, and where did those sources originate?

  7. Scott Spaulding 2021-02-25 14:26

    You do recognize that this proposal would mean any bill could be killed by simply inviting a handful of out of state speakers to testify in favor of the bill.

    Additionally, its a shame you are more concerned about who supports the bill than the intention to get us out of endless unconstitutional wars.

    Even so, its worth considering that of the 3 testimonies from South Dakota, 2 were in favor and only one was opposed and he was an interested party being paid to speak on behalf of the MIC.

  8. Cory Allen Heidelberger Post author | 2021-02-25 17:16

    Mr. Spaulding, glad to have you visiting. I just don’t want you writing my laws until you move here.

    If I were proposing a bill to my Legislature, and if I knew the legislators on the committee were inclined to follow my suggestion that they reject bills for which they receive mostly out-of-state testimony, I’d make darn sure not to invite out-of-state allies to testify. I’d work to find South Dakotans who would speak in favor of the bill. And if I couldn’t find more South Dakotans than out-of-staters to speak in favor of my bill, I might take that as a sign that my fellow South Dakotans aren’t really very fired up about the bill.

    You are correct: I should be more suspicious of Adj. Gen. Marlette and all members of the military-industrial complex. But Adj. Gen. Marlette also appears to speak for about 4,000(?) South Dakotans in occasional uniform. Neither Rep. Aylward nor my friend Tonchi Weaver appeared to speak for any equally large local constituency.

  9. Scott Spaulding 2021-02-26 03:26

    I would still argue the provenance of a bill is less important than its substance. But I can understand if not endorse skepticism of out of state support.

    I disagree that the General represents a constituency, he is speaking on behalf of his subordinates, I do not think you would accept that the CEO of Walmart spoke for all employees of Walmart and the relationship in the military is even more asymmetric. If one of his subordinates spoke publicly for the bill it they would risk their career and possibly military discipline. It is telling that a uniformed member can speak against the bill but one who spoke for it would be taking a great risk.

    Consistent polls show that the veterans, serving members, and their families support withdrawal even more than the general populace. Im not from South Dakota, so perhaps you could tell me otherwise, but I presume that the opinions there cannot be that far off.

    2021 Poll

    2019 Poll

    2019 poll

    2018 poll

  10. Cory Allen Heidelberger Post author | 2021-02-26 05:29

    So why didn’t those poll numbers translate into beleaguered South Dakota GUard families showing up in support?

    Provenance of a bill can reveal their substance. Bills originating from out-of-state groups are less likely to reflect the will of the voters and all South Dakotans who would have to live under that law. Bills originating from out-of-state (like Marsy’s Law) are more likely not to fully consider how their language may interact with other South Dakota laws and how their substance will affect the state budget and the rights of South Dakotans (see, for example, Marsy’s Law). Out-of-state laws may not be written as well as locally produced statutory text.

    Provenance of a bill may also reveal important information about the broader intent of the bill’s originators. For instance, Mr. Maharrey’s advocacy indicates that HB 1122 could be a clever way to co-opt “Support the Troops” into a toehold for a broader nullificationist agenda. Knowing who is speaking for and against a bill matters, because it tells us who might benefit and who might be hurt. It matters as much to note that the opponent is a member of military-industrial complex as it does to note that a proponent is from out of state and supports states’ overturning federal authority.

  11. Scott Spaulding 2021-02-28 12:24

    I understand your concern about the history of the bill, but I cannot help but imagine that there have been numerous bills you have supported that have out of state provenance. Ideas and legislation do not exist in a vacuum, if every bill or idea had to be organic to the people of that state, you would miss out on countless good ideas from around the nation and planet. Its also peculiar you are so concerned about the the people of the state governing themselves, yet skeptical of nullification which is effectively the state insisting on governing itself.

    More importantly I cant help but note that the bill seeks to reduce the influence of the executive (none of whom have ever hailed from SD) over the SD Guard. I suspect that most of SD did not vote for Joe Biden, yet he effectively has unilateral control over how the SD Guard will be utilized and where they will be sent. The argument here is that because 3 people from out of state support the bill, we should leave power over the SD Guard to a person from out of state who the state voted against.

    Furthermore that control is tied to dollars coming from out of state, allocated by the congress who almost entirely are not from SD. The main and most common argument against this bill in every state is that the state will lose out of state dollars. Those out of state dollars are leading your states government by the nose. If you are skeptical of out of state ideas & influence, shouldn’t you be skeptical of those federal dollars and the strings attached to them as well?

    Is it so wrong to insist that after 20 years of war the States congressional delegation vote on the wars? Especially since none of them were in office when the AUMFs were passed?

  12. John 2021-03-11 12:15

    The National Guard has a systemic values problem . . . a systemic problem of under-supporting American values and her Constitution.
    The nation is belatedly ferreting out treasonous confederate names of federal military posts.
    Now the nation must lead too many state National Guards with ferreting out unit treasonous confederate vestiges.

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