[LFC Comments: Thanks to the Columbus lobbyist for sending us their opinion on what will happen to SB22 that was recently passed by overriding Governor DeWine’s veto. This article was written prior to the recent vote to check Dewine’s tyranny.]
The Realities of SB22
Written by: A Columbus Lobbyist
To be clear – I want Ohio opened up fully as soon as possible -the concern of SB22 is that it is likely to be found unconstitutional by Ohio’s Supreme Court.
There are very long-term consequences to the Ohio economy in extending the impertinence of the Governor’s health orders.
The LEGAL Concepts
Separation of Powers: The Governor is the executive branch and “he runs” the state as its executive officer. The General Assembly passes laws that he must live within. So, if it were a business the General Assembly would be the Board of Directors and the Governor would be the CEO. Both the Governor and the General Assembly must live within the Ohio Constitution and the US Constitution.
The U.S. Supreme Court has routinely affirmed that Governors have executive power just like the President – and can issue executive orders within the law. Additionally, Governors should have emergency powers. I would argue that they should never have isolation and quarantine powers, and in Ohio it is unConstitutional for them to have emergency isolation and quarantine powers.
ORC3701.13 and ORC3701.14 were passed into law and are wholly unconstitutional according to the Goldwater Institute, The Landmark Legal Foundation, and The Pacific Legal Foundation.
ORC3701.13 and subsequent legislation is where the Governor derives his powers from for his public health orders. This legislation allows the governor to suspend the 5th and 14th Amendment to the U.S. Constitution and a host of other LAWS through public health isolation and quarantine orders. This is the suspension of “due process” and “equal application” of the law.
The options that are at the disposal of the legislature are: repeal of ORC3701.13, suspension of ORC3701.13, modification of ORC3701.13, or Impeachment of the Governor, legislators could sue and take the Governor to Court.
Because the legislature passed the law into existence – it is not very likely that he could be impeach for using a law the legislature passed. (VERY UNLIKELY)
Modification and repeal of the law requires presentment to the Governor for him to sign in which he will veto, then the legislature could perform an override and then it would take 60 days before the law would go into effect because it is not likely that it would be passed with enough votes to classify it as an emergency (2/3rds vote in the House and Senate) (UNLIKELY)
Suspension of the law is the easiest course as it is immediately effective, takes a simple majority, and is not presented to the Governor. (UNLIKELY)
Sue the Governor and take him to court – not likely to happen as the Governor is merely using an unConstitutional power the General Assembly gave him. (UNLIKELY)
It would seem that Suspending ORC3701.13 would be the natural choice as it would be the easiest to accomplish. This was done in June of 2020 in PA – Unfortunately, it was deemed as unConstitutional in PA because the Governor must sign off on all resolutions made by either chamber. Ohio’s Constitution has no such provision and so many experts believe the suspension route to be the easiest and best path.
Unfortunately, we can only find where the legislature used their suspension powers only twice in the 1860’s to suspend Ohio’s onerous “Black Laws” until they could be fully repealed. Virtually all legal professionals are ignorant of the legislators suspension powers – and because legislators refuse to educate themselves as do legal professionals it is unlikely this will happen.
Why is it believed that SB22 is unConstitutional?
SB22 creates a committee that would make a recommendation to the General Assembly to end a public health orders made under ORC3701.13. Then the General Assembly can end that public health order with a concurrent resolution. This means that the General Assembly is intruding in on Governor DeWine’s power to run the State.
Essentially, this is the board of directors telling state employees how to run the State. Clearly this is not the job of the General Assembly. It is widely believed by Constitutional Scholars that this violates the separation of powers. Essentially from the Constitutional Scholars I hear from is that once you give the governor the power – it is his to use.
The Constitutional scholars I have consulted with say that amending an unConstitutional law with yet another unConstitutional law is absurd.
Article I Section 18 of the Ohio Constitution – specifically – only allows the General Assembly to “suspend” laws. Suspension is not the same as repeal as repeal is permanent and suspension is temporary.https://www.legislature.ohio.gov/laws/ohio-constitution/section?const=1.18
The Ohio Governor has suspended “due process” and “equal application” of the law as granted by the 5th and14th Amendment – He cannot arbitrarily shutdown some businesses and allow others to remain open. He cannot quarantine nor isolate someone without “due process” – only the General Assembly can in Ohio.
A state’s Police powers to suspend “Due Process” and the “Equal Application” of the law for Quarantine and Isolation have been confirmed time and again by the U.S. Supreme Court – but the Ohio Constitution specifically prohibits the Governor from doing this. If anyone is going to suspend Due Process or Equal Protection under the law – quite clearly the Ohio Constitution intended that to be reserved to the Ohio General Assembly.
The Arguments in Columbus:
Most of the legislators I have talked to want to give the Governor 30 days to address a pandemic and then involve the legislature when it comes to public safety.
My response is: The Ohio Governor already has emergency powers and does not need the power of a King to manage a pandemic. He cannot be allowed to suspend law and neither should any bureaucrat be allowed to suspend law. Suspending law is specifically reserved to the Ohio General Assembly.
To reiterate “The legislature cannot and should not attempt to give the governor nor the Ohio Department of Health ” authority in quarantine and Isolation” This is a power SPECIFICALLY reserved to the Ohio General Assembly.”
Article II Section d of the Ohio Constitution specifically addresses emergency laws necessary for the immediate preservation of the public peace, health or safety. They need a two thirds vote from the Ohio House and Senate.
The reason why our Constitution does not give an executive power “king-like” authority is due to Ohio’s and Connecticut’s history – the History of the Firelands. The King of England suspended colonial law so that his soldiers could legally slaughter those in Connecticut supplying the rebels without trial. The King did this through declaring an emergency. NEVER AGAIN SHOULD THIS HAPPEN.
Please do not seek to give the governor the power to suspend law.
If Legislators are worried about a swift response then they should draft law that allows them to meet remotely during a pandemic and allow the Governor to submit legislation and get an up or down vote within so many hours after submitting the legislation. Maybe 1 hour for proponent Testimony, 1 hour for opponent testimony, and then vote.
Most people I talk to believe that SB22 will be vetoed and then the Veto will be overridden. [LFC Comment: This did happen]
Then 90 days until it goes into effect as it was not passed with a 2/3rd emergency vote. During this time it is expected the Governor will seek an injunction by the courts and seek to have the law challenged as being unConstitutional – say by day 80. If the Ohio Supreme Court accepts the case – many suspect that it may take many months to render a decision and that the pandemic will be over by then.
Again, if you want to try to shrink the time and win against the Governor – we can try to educate our legislators about their suspension powers. Here are some resources:
Pennsylvania Supreme Court Opinion on the use of Pennsylvania’s General Assembly use of Suspension Powers https://law.justia.com/cases/pennsylvania/supreme-court/2020/104-mm-2020-0.html
Louisana’s use of Suspension powers
Limitation of Executive Powers and Executive Orders https://fas.org/sgp/crs/misc/RS20846.pdf