64th Legislative Assembly: Week 7 Highlights- State Sovereignty, Student Free Speech, Separation of Powers, and Autonomous Vehicles

north dakota

Monday, February 16th marks the start of week 7 of the session. Monday is a bit of a slow day for hearings starting off a slow week, which is probably a good thing after the Common Core and Tobacco floor battles last week.

The only somewhat interesting one is HCR 3022. This resolution, if passed, would put on the ballot a measure to place in our Constitution language that allows the state (through the people or the Legislature) to exercise it’s sovereign authority should the federal government overreach, and if they do exercise that authority; to ensure that no state or local resources may be used to support the overreaching federal action or program. This resolution was being heard at 9:00am by the House Judiciary Committee in the Prairie Room.

Before some shout “but… but… but… Supremacy”, read the proposed resolution. All it calls for is the assertion of state sovereignty through making the federal government do their own work should they overreach through an action or program. This is a good solution. There may be supremacy (and I think everyone can agree the federal government has abused that immensely), but that doesn’t mean they can make states and political subdivisions actively participate in programs and actions, or otherwise do federal dirty work. The precedent for this was set in Printz v. United States in 1997. This amendment, if passed, will simply direct that such assistance not be rendered to the federal government if directed by the Legislature or the people via a ballot measure.

Monday also marks the T-minus 2 weeks and counting mark until crossover. As usual, that milestone has snuck up on everyone. You can expect the pace to pick up, and longer floor sessions to occur between now and then. Nothing motivates the Legislature to clear their desks quicker than the prospect of spending extended time away from Bismarck.

We are also two weeks away from seeing the halftime tally on this session’s SAB Legislative Scorecard. The marker bills will likely differ from what was discussed before the session, as there are simply more to choose from then there were before. Bills better suited for the scorecard have since emerged, and we look forward to presenting the rankings in a few weeks.

Tuesday, February 17th

Early Childhood Education and Due Process for College Students and Student Organizations

Senate Appropriations

Harvest Room

Starts at 9:00am

Two bills we are watching enter the appropriations phase of their hearing process Tuesday. SB 2254 will provide close to $53 Million to K-12 education for early childhood programs, mandating that all districts have them. As we have mentioned before on SAB, these programs have less than impressive results and amount to little more than expensive babysitting provided at taxpayer expense.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]In other news, I am told the University System office is being sued by Burger King for highjacking their trademarked “Home of the Whopper” slogan[/mks_pullquote]SB 2150 provides for a level of due process for college students and student organizations during disciplinary hearings, primarily by authorizing in law that they can retain an attorney at their own expense. It is clear the University System hates this bill as they will now actually have to build a case against students and organizations rather than railroading them as they did Caleb Warner. A popular technique state agencies pull with bills they hate is to trump up an inflated fiscal note, as they have with this bill, where in this instance the system claims the supposed extra expenses for increased legal workload will amount to over $830,000.

In other news, I am told the University System office is being sued by Burger King for highjacking their trademarked “Home of the Whopper” slogan.

Freedom of Speech Rights for Students

House Education

Pioneer Room


I am trying to figure out if this bill will help better ensure the freedoms of speech and expression for K-12 and college students, or if it may actually be used to infringe them if this bill is passed. HB 1471 basically will assert the rights of student journalists to report without censorship or retribution from the school or college so long as they are not breaking laws, committing libel, unduly violating privacy, or:


There is similar language for colleges under the control of the State Board of Higher Education.

That passage above is the tricky part, and where such a bill could be a limitation to free speech rather than an enabler. While the burden of proof will clearly fall on the school district or college, I doubt seriously the bar will be set that high to satisfy that burden should push ever come to shove with this law.

I like the concept of this bill a lot, and if the amendment process could better clarify the concerns expressed above, it is definitely worth passage.

Wednesday, February 18th

This is a pretty slow day for bills heard in committee which are being watched by us. The only one of mild interest is SB 2251, which will be heard by Senate Appropriations at 10:00am in the Harvest Room.

This bill, in its original form, would have required the director of mineral resources to “vigorously” enforce laws that they are already enforcing. Huh? Second, if appears to take away any real discretion he has with fines up front by requiring them to be collected first, and then refunded later if appropriate to do so.

This bill was so bad it earned a hog house amendment converting it into a study on plugging and reclamation bonds. It has very little resemblance to the bill which it sprang from.

Thursday, February 19th

Eliminating the Ability of the Executive and Judicial Branch to Introduce Legislation

North Dakota has some weird anomalies. For many years we elected democrats to the US House and Senate, but maintained firm republican control of state government executive branch offices and the Legislature. We have a bank and a mill unlike the other states, which when you ask why we still maintain these under state ownership, you are told, “well, because we have always owned them”. Hardly a reason to continue to do so, but it is the one we keep using.

Another anomaly in our state is we allow executive branch agencies and the judicial branch to introduce their own legislation, which when you look at it objectively is a clear violation of the spirit and intent of the separation of powers. The executive branch (primarily) has taken full advantage of this too. According to LibertyND PAC, “While only 60-65% of legislators’ bills get passed, a whopping 85-90% of agency bills get passed, with an average 90% “yes” vote.” Regardless of whether you choose to fully believe the numbers presented or not (and I am sure they are not hard to confirm), if the numbers amount to even half the percentages listed it is concerning. Regardless of if the numbers are 100% accurate, this also reinforces the complaints heard from many lawmakers over the past several sessions that full time state agencies get two years to prepare to fool a part time Legislature for 80 days.

We elect the Legislative Branch to create laws. We elect the Executive Branch to enforce them or otherwise carry them out, and the Judicial Branch to manage the processes associated with the breaking of those laws. Never are these lines supposed to cross, but clearly they are in North Dakota. That needs to change or we will continue to have one branch of government, supposedly co-equal, in a position of subordination to the others.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]There is simply no reason why state agencies can’t follow the same process that the ordinary citizen, which ultimately all of state government works for, must follow to address legislative initiatives important to those agencies[/mks_pullquote]We have an open and accessible legislature; one of the most open and accessible in the nation. Any citizen can bring forward a bill to them, without having to go through layers of staff, for consideration and introduction. There is simply no reason why state agencies can’t follow the same process that the ordinary citizen, which ultimately all of state government works for, must follow to address legislative initiatives important to those agencies.

HB 1442 seeks to simply correct this imbalance and put each branch back in their correct roles in our state. If any legislator does not vote for this change, then frankly I wonder if they take their role in our system of government seriously enough.

Friday, February 20th

A pretty slow week wraps up with a slow day. The Senate Transportation Committee will hear HB 1065 at 9:00am in the Lewis and Clark Room, getting a jump on the pile of bills that will await them after crossover. This bill related to rules for autonomous vehicles (or driverless cars) which — lets be honest — brings out the inner geek in us all. It has been amended into a study from its original form. Despite this, we hope to see passage as this technology represents an emerging and exciting field in transportation. It also represents a great way for government to get as far out of the way as it can while ensuring public safety.