COVID-19 and the Ohio Executive Branches Overreach

by Ellen Horton

Most Ohioans are unaware that a number of government actions that framed the current protocol for avoidance of the spread of COVID-19 are not legitimate. Please allow me to offer explanation.

The Ohio government’s first related act was the sudden and immediate cancellation of the March 17th Primary Election. The Constitution of the United States plainly assigns election details to the state legislature,(1) and no state official or government body is authorized to override the U.S. Constitution.(2) The Ohio constitution provides the governor with the option of calling a special session for the purpose of declaring an emergency,(3) but the emergency laws must be voted on and passed by the General Assembly before any emergency action can be taken.(4) This procedure was not employed.

Ohio’s governor announced on a Thursday that all Ohio schools would be closed on Tuesday of the coming week, due to a corona virus emergency. It happens, though, that to this day, there is no legal declaration of emergency in the state. Such declaration and implementation of emergency laws are the duty of the state’s General Assembly, and the state legislature has taken no such action.(4) One could argue that it would have been impossible for the legislature to gather on short notice. However, with modern technology, multiple options were in place for this purpose: conference call, ZOOM, GoToMeeting, and texting of a roll call vote, to name a few. The underlying premise is that the Ohio General Assembly has exclusive lawmaking power in the state.(5) Ohio law further forbids any exception to the singularity of that power.(6) The governor and appointed members of the executive branch, such as the head of the department of health, are only given charge to employ laws that are passed by the legislature.(7)

Federal law guarantees to every state a Republican form of government.(8) A Republic, of course, is a state in which the exercise of the sovereign power is lodged in representatives elected by the citizens. That being the case, an appointed (unelected) official, such as the head of the department of health, is limited to placing demands or restrictions upon the citizens only when given that authorization by vote of the members of the General Assembly who represent the public.(9)

The Ohio Revised Code (ORC) provides additional details regarding the director of health. The director may administer existing laws and rules, but she may not establish new ones, as she is an executive appointee and not a legislator. ORC stipulations do not override the state constitution, as only the amendment process can alter the constitution. No action of the director may defy or alter existing laws.(10) Some of the department’s current policies demonstrate blatant disregard for the citizens’ rights that are set forth in the Ohio Bill of Rights.(11) The state does have authority to seize private businesses, but only to repurpose the industry for public use or for the public welfare in times of war or public exigency.(12) The law makes no provision for simply shutting down private businesses. The department of health is given authority to supervise matters involving public health and full authority in regard to quarantine and isolation.(13) Nonetheless, all Ohio laws established in the Ohio Revised Code are subject to the overriding authority of the state constitution. Until an emergency has been declared by the legislature, no so-called emergency measures are, in fact, law.

I believe that Ohioans are fully aware of the risks involved with the COVID-19 threat. My experience in public spaces assures me that Ohioans take the matter very seriously, and I do believe that unnecessarily stringent government restrictions have begun to build resentment in the public. A relaxation of demands, I believe, would make no negative change in the safe behavior of Ohioans, as we have proven ourselves to be responsible and serious about our own safety and that of those whom we encounter. Might we, please, be released to meet for church services and to conduct business while continuing to respect the safety and well-being of ourselves, our loved ones, and our neighbors?

Sources:

(1) The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;… (Article I, Section 4, Constitution of the United States)

(2) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Article VI, clause 2, Constitution of the United States)

(3) “The governor on extraordinary occasions may convene the General Assembly by proclamation and shall state in the proclamation the purpose for which such special session is called, and no other business shall be transacted at such special session except that named in the proclamation or message to the General Assembly issued by the governor during said special session…”

(4) “…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.” (Article II, Section 1d, Constitution of the State of Ohio)

(5) “The legislative power of the state shall be vested in a General Assembly consisting of a Senate and House of Representatives…” Article II, Section 1, Constitution of the State of Ohio)

(6) “No power of suspending laws shall ever be exercised, except by the General Assembly. (Article I, Section 18, Constitution of the State of Ohio)

(7) “The supreme executive power of this state shall be vested in the governor.” (Article II, Section 5, Constitution of the State of Ohio)

(8) “The United States shall guarantee to every State in this Union a Republican Form of Government…” (Article IV, Section 4, Constitution of the United States)

(9) “Every person chosen or appointed to any office under this state, before entering upon the discharge of its duties, shall take an oath or affirmation, to support the Constitution of the United States, and of this state, and also an oath of office. (Article XVI, Section 7, Constitution of the State of Ohio)

(10) “(A) The director of health shall perform duties that are incident to the director’s position as chief executive officer of the department of health. The director shall administer the laws relating to health and sanitation and the rules of the department of health. The director may designate employees of the department and, during a public health emergency, other persons to administer the laws and rules on the director’s behalf. (B) Nothing in this section authorizes any action that prevents the fulfillment of duties or impairs the exercise of authority established by law for any other person or entity.” [(3701.03), General duties of director of health, Ohio Revised Code]

(11) “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety. (Article I, §1, Constitution of the State of Ohio)

“The people have the right to assemble together, in a peaceable manner, to consult for the common good;” (Article I, §3, Constitution of the State of Ohio) and so ”No power of suspending laws shall ever be exercised except by the General Assembly.” (Article I, §18, Constitution of the State of Ohio)

(12) Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure of for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use…” . (Article I, §19, Constitution of the State of Ohio)

(13) The department of health shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quarantine and isolation, which it may declare and enforce, when neither exists, and modify, relax, or abolish, when either has been established. [(3701.13), Department of health — powers, Ohio Revised Code]