SB22 and its unConstitutionality.

By Jon Morrow M.Econ.
Spokesperson for the Committee for a Better Ohio
Nonprofit 501(c)4
Committeeforabetterohio.com
facebook.com/COMMITTEEFORABETTEROHIO

The Committee for a Better Ohio wants to make Ohio a better place for all Ohioans and has consulted with many Constitutional Lawyers from around the country on the Ohio Governor’s actions and possible remedies.

The obvious 600 pound gorilla in the room is Senate Bill 22 – the proposed measure to re-open Ohio and restore our republic, Constitutional?

Senate Bill 22 is heralded as the possibility to restore the ability of Ohio legislators to represent their constituents on the topic of COVID-19. Currently, the governor of Ohio has suspended all of Ohio’s representation concerning COVID-19. Some hail the Governor as a savior and others chastise him as a tyrant for his draconian measures. Whether you like him or hate him – we are supposed to be a country and a state of laws.

Did Gov. DeWine save thousands of lives as he claims or, did he exacerbate an already bad problem and create thousands of new deaths that would have otherwise not occurred? The answer to that question really has no relevance in determining the legality of Governor DeWine’s actions.

Let’s remove passions from this argument.

The Supreme Court of the United States has time and again confirmed the use of a States police powers to suspend laws in times of an emergency to protect lives. According to Gov. DeWine this is what he has done – he used the police powers that were given to him in a roundabout manner by the legislature under Ohio Revised Code (ORC)3701.13 and ORC5502.22. At first blush, all of Governor DeWine’s public health orders would seem Constitutional. That, however, is not at all the case.

The 5th and 14th Amendments to the United States Constitution provide a sacred trust between the governed and government. The right to “due process” and the “equal application” of the law. It is a legal understanding that most of us know instinctually. The government cannot imprison you, take your property, or close your business without due process (a legal hearing). The government cannot apply a law to just you and no one else. Of course, if an emergency is declared – magically – the State can use its police powers in the name of saving lives and deprive you of “due process” and the “equal application” of the law – in a legal manner.

ORC3701.13 gives the governor – through the ODH (Ohio Department of Health) – “ultimate authority in matters of quarantine and isolation.” If quarantine and isolation are imposed without “due process” then the governor has directly “suspended” a law. If public health orders arbitrarily close businesses (an equal application of the law issue) the governor has directly “suspended” a law again. In many states this would be legal for the governor to this under their policing powers in times of an emergency to preserve life.

In Ohio’s Constitution are a couple of provisions that come into play when an emergency is declared and who gets to suspend law.

Contained within the Ohio Bill of Rights (sacred rights that all Ohioans have) is Article 1 Section 18. “No power of suspending laws shall ever be exercised, except by the general assembly.” This SPECIFICALLY does not allow the governor to suspend laws – even during an emergency. This does not even allow the General Assembly to gift its sole power of suspension to any bureaucrat, agency of the State, or committee. This means that ORC3701.13 is unConstitutional and that the Governor’s actions in utilizing this unConstitutional provision are indeed unlawful.

The Ohio General Assembly is the only entity allowed by the Ohio Constitution – especially in times of an emergency – to suspend law.

The Ohio Constitution is very specific of how legislation is to be passed in times of an emergency when it concerns health or safety.

Article II Section 1 Paragraph D states: “….emergency laws necessary for the immediate preservation of the public peace, health or safety, shall go into immediate effect. Such emergency laws upon a yea and nay vote must receive the vote of two-thirds of all the members elected to each branch of the general assembly, and the reasons for such necessity shall be set forth in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon. The laws mentioned in this section shall not be subject to the referendum.”

If the Ohio General Assembly wanted to suspend “Due Process” and “Equal Application” of the law, it can only do so with 2/3rds of all members of the Ohio House and Senate.

SB22 does not remove the provision that unConstitutionally allows the governor to suspend law in ORC3701.13. The statute seemingly reinforces the current mentality of Ohio legislators that the Ohio Governor must have the power to suspend laws in the time of a declared emergency. SB22 creates a committee to oversee the actions of the governor and will bring the hammer down on the governor if they do not like the way the governor is handling an emergency. Most of Ohio’s legislators and many lawyers are under the impression Ohio’s governor can wield the police powers of the State when this is inarguable – he cannot. Creating a committee to regulate the executive office for wielding a power he is not allowed to have – is at best befuddling. SB22 is unnecessarily complex and is not a legally graceful solution to Ohio’s problems. SB22 muddies the water between the separation of powers between the branches. Legislator are supposed to legislate – not manage a pandemic. The governor – love him or hate him – is the manager of our state. A committee to over-rule the governor when he is acting within the law is a legislative body delving into the management of the State. It is totally different than answering questions of agencies of the State Government in vague legislation given to them in which to operate – which the General Assembly does all the time. SB22 most likely will be found to be unConstitutional because it seemingly confers powers to the Governor that he cannot have, and it violates the separation of powers in managing the affairs of the State.

The solution to the Ohio Legislature getting their power back, if they refuse to impeach the Ohio governor, resides in Article I Section 18 of the Ohio Constitution. “No power of suspending laws shall ever be exercised, except by the general assembly.” The Ohio General Assembly is affirmed by the Ohio Constitution to be able to suspend ORC3701.13 – once more it has immediate effect. Nowhere in the law does it say that it must present a suspension to the Governor of Ohio as a law and allow him the chance to veto it.

A suspension of law is temporary in nature (it is not a permanent repeal of the law) and is not a legislative VETO that the United States Supreme Court has found to be unConstitutional. The mechanism that the legislature must use to suspend the law – that has the force and effect of law – is a Joint Resolution.

When we follow the law we do not need to introduce unnecessary complexity.

WHAT “SUSPENSION” OF ORC3701.13 WOULD DO:

·      Would immediately stop the public health orders that do not use due process (quarantine, isolation, and shutting down businesses by suspending their licenses)

·      Would immediately stop any public health orders that are not equally applied to all persons or businesses. (would stop closing restaurants early)

·      Would require the Ohio General Assembly to pass emergency laws with 2/3rds majority to keep in place the Governor’s public health orders.

·      Would restore the power of the Ohio General Assembly as the sole authority to suspend law.

It is our hope that the legislature will not wait until the Governor takes his case to the Ohio State Supreme Court and will “SUSPEND” ORC3701.13. Please call your legislator and inform them of their power to suspend law and that it has an immediate effect!

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