In re EO 139-07 2025 SDSC 19
In re EO 139-07 [2025] SDSC 19
| Date | 22nd July 2025 |
| Justices |
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| Held |
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| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Justice Ivy Cactus
(with Chief Justice TheLittleSparty and Justice Syndicality agreeing)
Introduction
[1] The petitioner is seeking review into EO 139-07, signed by President mypenjustbroke, which designated the groups “Traditional Insurgency for Defense and Enforcement” (TIDE), “Golden Consciousness” (GC), and “Proletarian United Party” (PUP) as terroristic on the grounds that it is invalid due to incongruencies with the Terrorist Connected Accounts Act (TCAA).
[2] The court received three amicus briefs, two from Vice President ppatpat and another from President mypenjustbroke.
Summary of the Petition
[3] The petitioner makes the simple argument that Article 7 of the TCAA stipulates that all terrorist organizations “shall” undergo review by “an independent oversight authority or the appropriate government oversight authority,” and that since this did not happen, the Executive Order’s designations cannot be legally valid.
[4] They expand that it is immaterial whether the law passed before or after the Executive Order, as if an Executive Order is contradicted by statutory law, either explicitly or implicitly, it no longer holds legal weight.
[5] They continue that requiring independent review of an executive action does not cannibalize executive power, nor would an independent body reviewing a judicial decision and referring it to the Supreme Court constitute a usurpation of judicial authority.
Summary of the Response
[6] The state adopted the posture of the amicus brief submitted by the former Vice President in full, and, therefore, this section will be used to discuss said amicus.
[7] The amici opens by stating that they are in agreement that all TCAA designations of terrorist status require review by the SDIOA. They contend, however, that this failure to review is the fault of the SDIOA and not the executive, and therefore, the executive can not be held liable.
[8] They then outline that laws tend only to apply prospectively, unless stated otherwise. Due to this, they reason, EO 139-07 can not be invalidated simply because it did not comply with the standards set out long after it was issued.
[9] They conclude that requiring a review by an independent organization prior to an executive action taking place is an implicit cannibalization of executive power (and applies the same to the judiciary). Therefore, the Executive Order being stalled until after SDIOA review would constitute an unconstitutional separation of powers violation.
Summary of the Former President’s Amicus Brief
[10] As noted before, President mypenjustbroke also submitted an amicus brief. Said brief can be summarized by the simple statement that if the TCAA is going to apply to the Executive Order retroactively, the SDIOA must also be able to review it retroactively.
[11] The President, in their amicus, brought forward a piece of South Dakotan district court contract law jurisprudence (McGlone v. Lacey, 288 F.Supp 662 (DSD 1968)) to argue that the statute not specifying that a branch other than the executive can make a terrorist designation does not mean that the other branches can not. The court, regardless of applicability, is rather amused by this citation and commends the amici accordingly.
How does Designation Work
[12] The first thing necessary to answer this case is how the process of designation, under the TCAA, is supposed to work. One would hope, from such an important piece of law, that this process would be outlined explicitly — one would be let down. The court will endeavor to untangle who, when, and how designation can occur.
[13] One glaring flaw is that the TCAA does not make it clear who can make a terrorist organization designation. Indeed, the only time the word “designation” is stated is in Article 7, the article about independent oversight. This means that not only is there no clear designation process, but it is not even stated one way or another what “designation” even constitutes. Complicating this even further is that the TCAA contains an article titled “Executive Powers,” which neglects to mention terrorist designation.
[14] The court thinks that the Executive Order in question can be used as a basis for what “organization designation” means in the context of the TCAA (given that the law was written in the context where designation by EO, such as this, was already occurring). That is, it's an executive action wherein the President or a similarly competent individual declares an organization to fit the definition of terrorist organization given in Article 2, Section 1 of the TCAA (“a group of individuals organized to commit terrorism”).
- [14.1] There was a point raised in [11] that the absence of a specific designation of who can do an action given out in statute should be taken as meaning that any given branch can do so (or at least, that the opposite isn’t necessarily correct). As a general rule of thumb, in situations like this where the entity that has authority over a matter is unclear, an examination into who is the competent authority over the matter at hand should be taken. In this case, that of law enforcement, the competent authority is the Department of Justice and those who preside over it (see: In re Penalties and Tickets Act [2025] SDSC 17, In re NSFW Discord Channels [2020] SDSC 16). Indeed, it is the executive’s duty to enforce law generally, so when it is unclear which branch should do something set out in law, the executive should usually be the primary consideration.
[15] Following this designation by the executive, it is required that an independent review happen by “[a]n independent oversight authority or the appropriate government oversight authority.” It can be surmised that the body this is referring to is the SDIOA (the independent oversight authority over SimDemocracy, one wonders why they didn’t throw in the “SimDemocracy” and make the reference explicit), although it should be noted that the Senate, under Article 4 of the Constitution, may also conduct this oversight. After this review, the reviewer may refer it to “the courts” for insufficient evidence (or other illegality, it can be presumed). In this case, the appropriate authority for reviewing an executive action is the Supreme Court, which could overturn the executive action via the normal judicial review process. One may recognize this as the way that oversight into all executive and legislative actions works, which would be the correct assessment — the only difference is that in this instance, it's required instead of following an anonymous tip from a member of the public.
[16] The question, then, is whether a failure of a competent authority to review the terrorist designation legally nullifies the designation (for reference: the exact statement is “shall review all terrorist conspiracy bans and organization designations”). For this, the word “review” is instrumental, as it designates an action taken after another action (versus “approve,” which designates an action that is a prerequisite for another to occur). Given this, it can be assumed that the designation is legally enforceable from the moment of designation up until invalidated by a court, following a review or otherwise. For a parallel, it is convenient to look towards the other action subject to Article 7, preliminary bans. It would be absurd to posit that the person can not be preliminarily banned until after a review and full court case — this would nullify the purpose of a preliminary ban entirely. It would be strange, then, to imply that it works one way for one half of the “and” and another way for the other.
- [16.1] It should be noted that it is, generally, unwise for the executive to apply the designation to a criminal case before, at least, the independent review. Doing so makes any cases predicated on such designation susceptible to appeal and Judicial Review (although such is always possible even after independent review, of course). If a Judicial Review decides that a terrorist designation was illegal, convictions for terrorist conspiracy that relied on said designation are necessarily voided.
The Status of EO 139-07
[17] With this in mind, it can be assumed that if the Executive Order is a legal “organization designation” under the TCAA, it is still in effect. There is uncertainty, though, about whether the Executive Order was invalidated by the passing of the TCAA (see: [4]).
[18] There is no disagreement by either party on the fact that an EO may be explicitly nullified by the passing of new legislation; this is not the case for the Executive Order in question, though, so the court turns to the alternative possibility: that the Executive Order was implicitly invalidated.
[19] First, though, what constitutes an implicit repeal of an Executive Order must be addressed. As stated in In re Executive Orders 23 & 23-A [2022] SDSC 1 [4], “[e]xecutive authority is inferior to statutory and Constitutional law”, and “[a]ny actions taken in contradiction to higher laws are invalid.” As such, if a new law passes that contradicts an old Executive Order, that Executive Order can no longer legally be enforced (this makes “implicit repeal” a bit of a misnomer; it would more accurately be referred to as a nullification).
[20] So, is there anything in the TCAA that contradicts the Executive Order in question? Certainly not outright, the TCAA indeed somewhat justifies the designation that occurred in EO 139-07. The alternative option, then, is that the definition of terrorism has changed substantially enough since the Executive Order passed that the earlier declaration has no legal weight. The court does not believe this to be the case; the GEETSA, which was in effect at the time of the Executive Order’s issuing, includes a definition of terrorism. Article one of the TCAA recognizes forms of terrorism otherwise recognized in SimDemocracy law, such as in the GEETSA. It is perfectly reasonable, then, to assume this standard is what’s being applied. Thus, the passing of the TCAA did not change the definition of terrorism substantially enough to automatically nullify the EO 139-07.
On Judicial Application of Terrorist Designation
[21] Whether the courts themselves could determine whether an organization was terroristic came up multiple times in argumentation. The court sees this as a pertinent question to answer, due to its potential impact on other matters going forward (and the fact that the argumentation has already been made).
[22] It is not the case that a court can “designate” an organization as terroristic in the same way as the executive can. However, the courts have the ability (and indeed, duty) to interpret and apply the laws of SimDemocracy. As such, it is within their prerogative to make a determination about whether an organization is terroristic under Article 2, Section 1 of the TCAA using evidence admitted in trial or previous court decisions.
On Ex Post Facto Punishment in Relation to Terrorist Conspiracy
[23] This differentiation between a decision under Article 2, Section 1 via executive fiat versus judicial finding raises questions about at which point each is punishable, and how it relates to possible ex post facto punishment (which is outlawed under Section 5 of the Constitution’s Article 21, the Right to a Fair Hearing) when charging under Terrorist Conspiracy.
[24] A judicial finding of terrorist designation is simply a reflection of facts. It is therefore applicable for terrorist conspiracy from the point at which the conduct of the organization under scrutiny rose to the level of meeting the definition. An executive designation, however, only applies from the point at which the executive order doing so was issued, as the terrorist organization, under this approach, only became one at the time of designation.
[25] An executive designation does not, necessarily, preclude a judge finding that the conduct of the organization rose to the level of terrorism prior to such a designation. On the other hand, due to the fact that designation may be held to a different standard than judicial finding (at the discretion of the Supreme Court under deeper analysis at a future date, as described under [16.1]), a court of first instance may not overrule an executive designation for cases applied to events occurring after such designation.
Verdict
[26] EO 139-07 is legally valid and in effect, although the SDIOA or another competent oversight authority must review it under Article 7, Section 2 of the TCAA as soon as possible.
[27] The injunction on EO 139-07 is lifted.
Postscript
[28] This decision of legal validity does not constitute a decision on the merits of the designations, which shall be considered if raised by the reviewing party following their report or otherwise through normal Supreme Court petition procedure.
[29] This decision also does not constitute an intense examination of the TCAA’s constitutionality, given that such was not discussed in the argumentation.