Last week’s Legislative Executive Board meeting included discussion of a draft Issue Memorandum from the Legislative Research Council on executive orders. The LRC finds that the South Dakota Constitution doesn’t set a lot of parameters for executive orders, mentioning that executive power explicitly only once, in Article 4 Section 8 regarding reorganization of government (which Noem exercised this year in her burial of environmental regulation in the Department of Agriculture). The LRC also notes that Noem has flexed this ill-defined power far more frequently than other modern governors:
From 1973 to 2020, the South Dakota Legislature enacted more than 15,000 bills and South Dakota Governors issued almost 800 executive orders. Some governors issued as few as three orders per year while others issued as many as 42, with the average annual number being approximately 17….
The above-referenced 42 executive orders were issued by Governor M. Michael Rounds in 2010….
During her first year in office, Governor Kristi Noem issued 29 executive orders….
During 2020, Governor Noem issued 34 executive orders… [Legislative Research Council, draft Issue Memorandum: “Governor’s Executive Order Authority in South Dakota,” presented to Executive Board 2021.08.31].
For a politician who regularly expresses alarm at excessive exercise of executive power, Governor Noem has eagerly availed herself of South Dakota’s vaguely defined gubernatorial fiat. Perhaps she has caught herself in this seeming contradiction and pulled back on her Second-Floor unilateralism: with twelve executive orders issued so far in 2021, Noem is on pace to issue 17.5 executive orders this year, closer to the recent average.