Kristi Noem under fire from state Freedom Caucus for allegedly overstepping South Dakota constitutional limits

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Gov. Kristi Noem, R-S.D., is facing criticism from some of her home state Freedom Caucus members who say Noem's office has "overstepped" its constitutional authority by circumventing part of the legislative process. One state lawmaker said it could complicate a presidential bid for her in 2024.

"A battle has ensued in the South Dakota Legislature, and tensions are escalating," the South Dakota Freedom Caucus said in a statement last week.

The group is challenging the constitutional authority of Gov. Noem’s executive agencies to sponsor legislation in the state legislature. 

It says Noem and her agencies have "overstepped their authority" by exploiting a loophole in the state lawmaking process that allows agencies to introduce bills without a legislative sponsor, an act some Republicans in the state say is crossing the line too frequently into an area that should be controlled by elected officials.

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Republican South Dakota Gov. Kristi Noem (AP Photo/John Raoux, File)

The issue came to a head for the group last week when the state's Department of Labor and Regulations introduced two bills with the Commerce and Energy Committee without any legislative sponsor. When the chairman of that committee tried to vote on the bills, Rep. Tina Mulally, a Freedom Caucus member, opposed the move and argued that neither bill had a legislative sponsor and therefore should not move.

The chairman then agreed to sponsor the bills, after which the committee voted to approve them and send them to the full House.

Mulally said afterwards that the incident shows the executive agencies are playing too big of a role in the legislative process.

"The governor and the executive agencies seem to conveniently forget we have three branches of government, not one," said Mulally, who argued against the bills in a committee hearing. "It’s the difference between a Republic and a despotism."

Mulally argued in a committee hearing this month that both bills were being sponsored by an executive agency that lacked constitutional lawmaking authority and said the move circumvents the power of the legislature.

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"The governor and the executive agencies seem to conveniently forget we have three branches of government, not one," said Mulally, who argued against the bills in a committee hearing. "It’s the difference between a Republic and a despotism."

Both of those bills — HB 1011 and 1012 — ultimately passed the House, and HB 1011 with unanimous Freedom Caucus support.  Rep. Tony Randolph, vice president of the Freedom Caucus, even celebrated the bill's passage, which dealt with tax cuts, on social media last week saying that he hopes the bill is "only the beginning of what we can accomplish this session."

Gov. Kristi Noem at the Reagan Ranch in October 2021. (Young Americas Foundation)

Former Attorney General Roger Tellinghuisen, who served as the state’s top prosecutor from 1987-1991 and who has stayed involved in legislative affairs as a lobbyist, also defended the state's 35-year lawmaking process and said he opposes the idea of doing away with it.

"Frankly, I think it’s bad practice to not allow it," he told a local news outlet, The Dakota Scout. "Agencies tend to be repositories for the history and the information that give rise to good legislation. To outlaw agency bills that way I think is shortsighted."

Ian Fury, a spokesman for Gov. Noem, told Fox News Digital "state agencies are following the same process that has been used for decades," and that "committee members introduce all bills."

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The Freedom Caucus argues, however, that the status quo process is flawed and that just because a committee member rubber-stamps a bill through to the house floor does not mean it's undergone the proper legislative procedure. A spokesperson for the group said the current process is akin to a masked lobbyist introducing bills without any say from elected legislators or no way of knowing whether a bill was legally introduced by a legislator.

The South Dakota Freedom Caucus is "challenging the constitutional authority of Gov. Noem’s executive agencies." (AP Photo/Phelan M. Ebenhack, File)

Tensions between conservative Republicans and Noem have been rising for a while, with some of their biggest grievances date back to the early pandemic years. According to the group, Matt McCaulley, a state lobbyist who is a former personal attorney for Noem, backed legislation that would give more power to counties to shut down business during the height of COVID-19.

That measure passed and led to protests around the state by unhappy business owners, the group says. During this time, they say, Noem was boasting that South Dakota refused to shut down.

State Sen. Julie Frey Mueller told Fox News Digital she's disappointed in Noem's leadership and suggested that other Republicans considering Noem for a potential 2024 presidential bid should review the measures the governor has supported.

"There's so many things we could do better, and to be in a position of power … where you could make those decisions, and then, to me, don't make the right decisions … it's just sad," Mueller said, adding that she's disappointed Noem hasn't worked more in tandem with the Freedom Caucus.

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"I would say if you're a constitutional conservative governor that you would have been so proud … and I would have loved to have been able to work with a governor that actually did what she said was going to do." Mueller said.

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In an attempt to fix the legislative process, Rep. Tony Randolph introduced a bill this week that would require the governor, chief justice and executive agencies to get individual legislators to introduce their bills and joint resolutions. But Randolph withdrew that legislation on Monday once it was clear the measure wouldn't pass. Randolph hopes to get the bill through a different committee before the end of this legislative session, Fox News Digital was told.

"This is a constitutional issue, and it should be an easy fix. We need to make sure that the people’s elected representatives are the ones leading this process and not unelected bureaucrats," Freedom Caucus Chair Aaron Aylward said.

Editor's note: The original version of this story incorrectly said the Commerce and Energy Committee did not vote on legislative proposals from Gov. Noem's executive agencies.