Last summer, the Department of Education strangely and without explanation canceled a hearing on rule changes proposed to root out “divisive concepts” from the Department’s documents and operations. Now, after an arduous open-records battle, Bob Mercer gets the secret August letter that explains why that hearing never happened—the Noem Administration was proposing an illegal overreach of executive power:
On Tuesday, the reason for that retreat became clear. [Legislative Research Council code counsel John] McCullough stated in the review letter state law didn’t give the department the legal authority to propose the ban through administrative rules. State law also didn’t give the board the legal authority to consider such a rules proposal.
He wrote, “An agency may not provide itself by rule with the authority to implement or prescribe a law or policy, which is what these proposed rules seek to accomplish. The law must provide the board with the authority to adopt certain academic content standards” [Bob Mercer, “SDDOE Releases Secret Letter on Noem’s Divisive Concepts,” KELO-TV, 2022.12.27].
Governor Noem hates government overreach… except when she’s reaching for more control.