Prepared for the Committee for a Better Ohio
The way in which the Governor of Ohio has handled the COVID-19 pandemic has caused some legislators to question the ability of the Governor to suspend Ohio law and issue public health orders through the Ohio Department of Health (ODH). Article I, Section 18, of the Ohio Constitution, clearly prohibits the suspension of laws by any other entity than the Ohio General Assembly.
Ohio Revised Code 3701.13, the statute that the ODH is utilizing for the authority to issue its emergency public health orders is clearly in opposition to Article II, Section 1, Paragraph D of the Ohio Constitution. This paragraph, with great specificity, does not give the executive branch or any department of government the ability to make emergency laws without a two-thirds concurrence of both chambers of the General Assembly.
The question becomes if the governor is utilizing a statute in a manner that is unConstitutional can the Ohio legislature suspend that statute until a court can hear the case? And then, if the General Assembly can suspend the statute, do they have to “present” the suspension to the governor and allow him to veto it? We have found that indeed, the legislature can suspend a statute rather than repealing a statute and that the temporary suspension of a statute need not be presented to the governor.
It is in our opinion that the “suspension” of law differs from the legislative veto of a law. The veto power is exclusively the governor’s and a legislative veto would be illegal. Suspension differs from veto as “suspension” is temporary in nature. A veto is permanent.
On March 9, 2020, in response to the COVID-19 pandemic, Governor Mike DeWine issued an Executive order 2020-01D proclaiming a State of Emergency pursuant to Ohio Revised Code section 5502.22.
5502.22 Emergency management agency.
(A) There is hereby established within the department of public safety and emergency management agency, which shall be governed under rules adopted by the director of public safety under section 5502.25 of the Revised Code. The director, with the concurrence of the governor, shall appoint an executive director, who shall be head of the emergency management agency. The executive director may appoint a chief executive assistant, executive assistants, and administrative and technical personnel within that agency as may be necessary to plan, organize, and maintain emergency management adequate to the needs of the state. The executive director shall coordinate all activities of all agencies for emergency management within the state, shall maintain liaison with similar agencies of other states and of the federal government, shall cooperate with those agencies subject to the approval of the governor, and shall develop a statewide emergency operations plan that shall meet any applicable federal requirements for such plans. The executive director shall have such additional authority, duties, and responsibilities as are prescribed by the governor and the director or provided by law in all matters relating to emergency management that may be reflected in other sections of the Revised Code. The executive director shall advise the governor and director on matters pertaining to emergency management on a regular basis.
Whenever the disaster services agency or director is referred to or designated in any statute, rule, contract, or other documents, the reference or designation shall be deemed to refer to the emergency management agency or executive director, as the case may be.
(B) For the purposes of emergency management, the executive director, with the approval of the director, may participate in federal programs, accept grants from, and enter into cooperative agreements or contractual arrangements with any federal, state, or local department, agency, or subdivision thereof, or any other person or body politic. Whenever the duties of the emergency management agency overlap with rights or duties of other federal, state, or local departments, agencies, subdivisions, or officials, or private agencies, the executive director shall cooperate with, and not infringe upon the rights and duties of, the other public or private entities.
Funds made available by the United States for the use of the emergency management agency shall be expended by that agency only for the purposes for which the funds were appropriated. In accepting federal funds, the emergency management agency shall abide by the terms and conditions of the grant, cooperative agreement, or contractual arrangement and shall expend the funds in accordance with the laws and regulations of the United States.
This statute allows the Governor to compel the Ohio Department of Health director to coordinate activities with the Governor’s office. This makes the health director an effective “ pass-through” for gubernatorial edicts that are declared during an emergency.
The Executive Authority of Governor DeWine has taken Concentrated/Emergency Powers and made us today’s Sufferers. How much longer can we withstand it?
Nearly all of Ohio’s controversial public health orders cite Ohio Revised Code 3701.13. On March 14, 2020, in response to the COVID-19 pandemic, the Ohio Department of Health Director, Amy Acton began issuing public health orders. Firstly, the ODH ordered “Limit and Prohibit Mass Gatherings” and justified this using Ohio Revised Code 3701.13. Subsequently, the ODH justifies its authority to fine, imprison, or otherwise penalize Ohio businesses and residents: all being done apart from Ohio’s General Assembly.
3701.13 Department of health - powers.
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. The department may approve methods of immunization against the diseases specified in section 3313.671 of the Revised Code for the purpose of carrying out the provisions of that section and take such actions as are necessary to encourage vaccination against those diseases.
The department may make special or standing orders or rules for preventing the use of fluoroscopes for nonmedical purposes that emit doses of radiation likely to be harmful to any person, for preventing the spread of contagious or infectious diseases, for governing the receipt and conveyance of remains of deceased persons, and for such other sanitary matters as are best controlled by a general rule. Whenever possible, the department shall work in cooperation with the health commissioner of a general or city health district. The department may make and enforce orders in local matters or reassign substantive authority for mandatory programs from a general or city health district to another general or city health district when an emergency exists, or when the board of health of a general or city health district has neglected or refused to act with sufficient promptness or efficiency, or when such board has not been established as provided by sections 3709.02, 3709.03, 3709.05, 3709.06, 3709.11, 3709.12, and 3709.14 of the Revised Code. In such cases, the necessary expense incurred shall be paid by the general health district or city for which the services are rendered.
The department of health may require general or city health districts to enter into agreements for shared services under section 9.482 of the Revised Code. The department shall prepare and offer to boards of health a model contract and memorandum of understanding that are easily adaptable for use by boards of health when entering into shared services agreements. The department also may offer financial and other technical assistance to boards of health to encourage the sharing of services.
As a condition precedent to receiving funding from the department of health, the director of health may require general or city health districts to apply for accreditation by July 1, 2018, and be accredited by July 1, 2020, by an accreditation body approved by the director. The director of health, by July 1, 2016, shall conduct an evaluation of general and city health district preparation for accreditation, including an evaluation of each district's reported public health quality indicators as provided for in section 3701.98 of the Revised Code.
The department may make evaluative studies of the nutritional status of Ohio residents, and of the food and nutrition-related programs operating within the state. Every agency of the state, at the request of the department, shall provide information and otherwise assist in the execution of such studies.
The pertinent part of this statute had never been utilized until the year 2020.
It is our legal opinion that while the Governor and the ODH director had complied with the Ohio Revised Code, they have violated the Ohio Constitution. The Ohio Constitution clearly states the intent with great specificity that “emergency” laws must receive a two-thirds vote in the Ohio House and in the Ohio Senate. Emergency power is not enumerated to the executive office anywhere in the Ohio Constitution.
An Ohio statute (Ohio Revised Code 3701.13) permits emergency powers to be transferred to the Ohio Governor through the Ohio Department of Health and the Health Director to suspend law… but Ohio’s Constitution does not.
Article I.18 Suspension of laws (1851) of the Ohio Constitution
No power of suspending laws shall ever be exercised, except by the general assembly.
The history of Article I, Section 18 of the Ohio Constitution indicates that the clause was intended as a negative check on executive power.
English monarchs had long asserted a royal prerogative to suspend laws. “The suspending power was much more powerful than the veto because it allowed a king to nullify not only bills that were presented for his assent but also all statutes that predated his reign—indeed, every law on the statute books.” This was the fear in granting a gubernatorial power that allows for the suspension of laws in the time of an emergency - that a governor may use such laws to declare an emergency when not necessary and subvert the will of the people by suspending their representation. It is for this reason that only the General Assembly has the exclusive ability to “suspend” laws and not the Governor, nor the Ohio Department of Health. The power for the executive branch or department of government to suspend laws is antithetical to a representative republic.
In the English Revolution of 1688, the Parliament sought to limit the power of the monarch, specifically with regard to the suspension of laws. Thus, the 1689 “English Bill of Rights expressly barred the Crown from suspending laws or issuing dispensations that permitted individuals to ignore certain laws. This is equivalent to what ORC3701.13 has allowed by empowering the ODH director.
As states began enacting constitutions after our nation declared independence, the framers of those Constitutions, still wary of executive power, adopted provisions similar to that in the 1689 English Bill of Rights.
For example, the framers of early Virginia Constitutions “held a historic distrust of concentrated executive power based on the ‘arbitrary practice’ of English Kings before the Revolution of 1688,” and endorsed a provision preventing the executive from suspending laws unilaterally.
The Kentucky Supreme Court, noting that a very similar clause to Article 1 Section 18 in the Kentucky Constitution “was modeled after a similar provision in the Pennsylvania Constitution,” stated that the clause “was originally designed to reflect the will of the framers to prevent suspension of duly-enacted laws by any entity other than the constitutionally-elected legislative body, a power the British government had ruthlessly exercised over the colonies.”
The expressed purpose of the provision was to ensure a shared power between King or Queen and Parliament, a form of what we commonly refer to as checks and balances.
Utilizing the power of “suspension” in a manner to suspend a statute that confers power illegally to the governor and ODH is a valid use of the original intent of the law.
If the governor wishes to challenge the Ohio General Assembly’s interpretation of ORC 3701.13 as unconstitutional, he may do so by challenging the assertion in the Ohio State Supreme Court.
The modern movie “The Patriot” starring Mel Gibson shows graphic images of the British burning villages in Connecticut - these actual events created Ohio’s first “Sufferers” and resulted in today’s Ohio “Firelands.”
The story of the Firelands is unique in American history, in that in no other instance were civilian victims of war compensated with land.
During the American Revolution, the little military activity there was in Connecticut involved busy citizens manufacturing goods and shipping supplies to the Continental Army. These actions angered the British. The King of England had allowed his military generals to “suspend” American colonial law resulting in a series of raids from New York City. Raids aimed at destroying the provided supplies and shipping.
The raids got out of hand. A good deal of civilians were killed and burned alive. Property such as private homes, churches, and schools, as depicted in the movie were also destroyed or damaged.
Those Connecticut citizens had no insurance or federal disaster grants to help them rebuild. An example of the destruction is found in the story of Norwalk, Connecticut, raided July 11, 1779, with 80 of the 86 dwellings in the town burned. Two churches, 87 barns, four mills, and five vessels were also lost in the raid. The other towns raided during the war were New London, New Haven, East Haven, Greenwich, Danbury, Fairfield, Ridgefield, and Groton. Today, these names are familiar to northern Ohioans. They are the names of towns, townships, and cities in the former Connecticut Western Reserve.
After the war, several petitions were presented to the Connecticut legislature by the citizens who lost property. They soon became known as “Sufferers.” Their 1787 appeal was referred to a legislative committee that reported back five years later in 1792 that the Sufferers ought to be paid. The state had only western lands for compensation in lieu of cash. This western land was part of northeast Ohio, the Western Reserve.
Sufferers (now living in the Ohio “Firelands)” cast a profound influence on the Ohio Constitution. They are the reason why the Ohio Constitution does not allow the Ohio Governor to suspend laws - even in times of an emergency. Sufferers, and the surviving family members of Sufferers, had experienced first hand the hazards of concentrated/emergency power in executive authority.
The Ohio Constitution, with great specificity, dictates that the suspension of laws rests exclusively with the Ohio General Assembly.
Ohio’s 1912 Constitutional Convention also saw the need to include language providing for the temporary, emergency suspension of laws with distinct intent to not give the Governor emergency powers to suspend laws. Nor does constitutional law infer that the Governor must concur with the legislature’s actions during an emergency. Article II - Section I - Paragraph D which amended the Ohio Constitution in 1912 - it states:
II.01d Emergency laws; not subject to referendum (1912)
Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and 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.
Yet, the Governor’s emergency proclamation has a legal effect. The emergency proclamation allows the ODH to suspend certain statutory and regulatory provisions reserved by the Ohio Constitution exclusively to the Ohio General Assembly.
Our Ohio Constitution specifically does not allow the Governor to act unilaterally as it is with other states. This is due to the 1912 Ohio Constitutional Convention where delegates had feared that a governor may declare an emergency when there is none and use emergency powers as an end-run around the Ohio legislature.
We believe that the Governor’s proclamation of an emergency is a mere “a declaration of fact” and cannot possibly be used by the ODH to prescribe the rules of civil conduct. Instead, it established the factual predicate necessary for other executive agencies to use certain powers granted to them legally by the Ohio statute and the Ohio Constitution.
The emergency proclamation authorizing other agencies to act under ORC3701.13, in our opinion, has illegally usurped those suspension powers expressly reserved to the Ohio General Assembly while allowing the Governor to exercise powers expressly forbidden to him.
The act of “suspending” a statute is to1) check executive power when it utilizes a law in a way which it was never intended or 2) stopping the use of a law that the General Assembly believes is unconstitutional and where the General Assembly cannot act to repeal the law in a timely manner to prevent harm.
Article II Section 1 amended the Ohio Constitution in 1953, further clarifying the power of the General Assembly to adopt or reject any or any part of the law:
II.01 In whom power vested
The legislative power of the state shall be vested in a general assembly consisting of a senate and house of representatives but the people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided. They also reserve the power to adopt or reject any law, section of any law or any item in any law appropriating money passed by the general assembly, except as hereinafter provided; and independent of the general assembly to propose amendments to the constitution and to adopt or reject the same at the polls. The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.
In our opinion, the Ohio General Assembly can suspend ORC3701.13 and do so without presentment before the Governor -- as the power is vested with the General Assembly and reserved to the people.
The ability to suspend without presentment is assumed because the Ohio Constitution has no provision requiring that a “General Assembly Initiated Constitutional Amendment” be presented to the Ohio Governor. The Ohio General Assembly can directly submit an amendment for a vote or by simply adopting a Joint Resolution. No governor needed! If the Ohio General Assembly can submit a proposed Constitutional Amendment to voters without approval by the governor - and this does not violate the separation of powers of the three coequal branches of government, then it stands to reason that powers granted specifically to the Ohio General Assembly need not be presented to the Governor.
We do not dispute those joint resolutions with legal effect should be subject to presentment to the Governor. In the case of “suspension” however, especially one that remedies a Constitutionally suspect statute, this does not equate to adopting a permanent change to the law. Therefore, it is not subject to the same standard as the repeal of a law which is permanent.
The Ohio Bill of Rights exists to protect citizens from government tyranny, by delineation of inalienable rights.
I.01 Inalienable Rights (1851)
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.
Clearly, and without reserve, ORC3701.13 as utilized by the Ohio Department of Health and the Governor are in direct contradiction to every facet of this section of the Ohio Bill of Rights.
The placement of Article 1 Section 18 is to “prevent tyranny of the Governor in capriciously ordering citizens to do something through the suspension of law”. To this end, the Ohio Bill of Rights itself gives specificity:
I.02 Right to alter, reform, or abolish government, and repeal special privileges (1851)
All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.
The Bill of Rights, including Article I, Section 18, serves to protect individuals from an overbearing government in general and does not empower any department of that government, including the Ohio Department of Health.
Clearly-- and without a doubt, the General Assembly is affirmed to have the power of revocation AKA “the power of suspension” in Article 1, Section 2 of the Ohio Constitution. The addition of the “altered” language would infer that the General Assembly need not “suspend” the entirety of a statute it deems unconstitutional and that it has the power to suspend (revoke) unconstitutional portions of a statute.
Of all the States that have a Constitution with similar such suspension language, only Louisiana's legislature has been successful in “suspending” a law without presentment to the governor. Besides Pennsylvania and Louisiana, no other state has had a legislature that has tried to suspend the law. The reason for this has to do with the structure of other state Constitutions and other portions that would negate that portion of the “suspension” law being used proactively.
While Louisiana's Constitution allows its legislature to suspend any law at any time, Ohio’s Constitution forbids this. Ohio’s Constitution we argue can only be used to suspend laws that are unconstitutional or are being utilized in an unconstitutional manner. This would then spark the courts into action deciding what is and what is not constitutional. While Ohio’s Constitution would seem to allow such a suspension of law, no Ohio General Assembly has made use of this provision.
The 1991 Louisiana Legislature proposed eleven concurrent resolutions authorizing the suspension of environmental laws and agency regulations. The legislature passed two of the less controversial provisions after changing one of them from a suspension to a directive for the Department of Environmental Quality (DEQ) to delay implementation of dairy farm runoff regulations for two years. All eleven resolutions were efforts to override provisions of environmental laws or regulations which were objectionable to the legislature or particular interest groups. This was accomplished without a presentment to the governor.
The legislature has acted under the assumption that the suspension power it is exercising is authorized by the Louisiana Constitution as well as by provisions of the Louisiana Administrative Procedure Act (LAPA). The constitutional suspension power emanates from Louisiana Constitution Article III, Section 20, which places the power exclusively in the legislature. The legislature's constitutional suspension power contained in Louisiana Constitution Article III, Section 20 reads:
Only the legislature may suspend a law, and then only by the same vote and, except for gubernatorial veto and time limitations for introduction, according to the same procedures and formalities required for the enactment of that law. After the effective date of this constitution, every resolution suspending a law shall fix the period of suspension, which shall not extend beyond the sixtieth day after the final adjournment of the next regular session.
Here, the Louisiana Constitution provides more specificity directly in the article itself. The Ohio Constitution is not as clear but all of the resident powers in the Louisiana Constitution do exist within the Ohio Constitution.
The Louisiana Constitution of 1812 contained no separate and official "Declaration of Rights" article, similar to the Ohio Constitution, but placed the protection for civil rights under various headings. In 1812, the suspension power found in the Bill of Rights of the Kentucky Constitution of 1797 was transferred to the "General Provisions" article (Article VI) of Louisiana's first constitution.
The Louisiana Constitution of 1812 Article VI section 17 reads: "No power of suspending laws of this state shall be exercised except by the legislature, or by its authority." This language remained unchanged until a 1962 amendment to the 1921 constitution added procedural qualifications for passage of a valid suspension similar to those found in the present constitution."' The provision apparently had been almost completely ignored by constitutional revisionists until the Louisiana Constitutional Convention of 1973. Although limited, the jurisprudential history of the suspension power in Louisiana gives some insight into the possible limits and uses of the power before the adoption of the present constitution.
There are few cases since 1812 addressing the Louisiana legislature's exercise of the suspension power, and they are not conclusive on the limits of the suspension power and provide only limited insight into how the exercise of the power should be evaluated. However, the available jurisprudence does reveal how the courts have looked at the suspension power in the past and helps predict how the power will be evaluated in the future.
Johnson v. Duncan & Al.’s Syndics was the Louisiana Supreme Court's first decision on the legislative exercise of the suspension power. The case involved a directive of martial law declared by General Andrew Jackson in 1815 during the Battle of New Orleans, as well as a legislative act suspending "all proceedings in any civil case." First, although the court said the issue was moot, it addressed the validity of whether the martial law directive suspended civil court proceedings. Analogizing the suspension provision of the Louisiana Constitution of 1812 to Congress' exclusive right to suspend the writ of habeas corpus. Justice Martin stated: "The proclamation of Martial Law, therefore, if intended to suspend the functions of this Court or its members, is an attempt to exercise powers thus exclusively vested in the Legislature."
Justice Martin further justified the exclusive authority of the legislature to suspend laws based on the English Parliament's power of suspension, and the insufficiency of the monarch's authority to do so.
He said the purpose of vesting the suspension power in the legislature is that:
[in the legislature,] the power is safely lodged without the danger of its being abused. [The legislature] may repeal the law on which the safety of the people depends; but it is not their own caprices and arbitrary humours, but the caprices and arbitrary humours of the other men which they will have gratified, when they shall have thus overthrown the columns of public liberty.
Martin concluded that the declaration of martial law was invalid since the legislature had not exercised its power, and he further declared that "the power of repealing a law and that of suspending it (which is a partial repeal) are Legislative powers."
In addressing the suspension of court proceedings by the legislature, the court first established that the suspension power is "a power which the Legislature cannot exercise without a limitation" and that the limits are found in the state and federal constitutions. He next analyzed the issue by suggesting that the legislature's action in closing the courts was an impairment of the obligation of contracts. Martin first made a statement of facts concerning the disruption that had occurred by the British invasion and the call to arms made upon the citizens of Louisiana to defend the state. In deciding that the suspension had not impaired the obligation of contracts, Martin declared:
“I presume that in any time obnoxious to the due administration of justice, it is the duty, and within the power, of the Legislature, to pass laws to avert or diminish the consequences of the general calamity, and a law called for by such circumstances, and fairly intended to meet the exigency of the day could not be properly classed [as improper].”
Justice Martin limited the exercise of the suspension power to emergency situations and presumably evaluated the "totality of the circumstances." This reasoning was further expanded by Justice Derbigny when he considered the "reasonableness" of the legislative action. He stated that "if the delay fixed by the Legislature in their discretion was not unreasonable, they have done nothing more than they had a right to do, and the law must be obeyed." The "reasonableness" standard was used 120 years later by the Supreme Court in determining the legitimacy of the suspension power during the Great Depression of the 1930s.
In our opinion, the Ohio General Assembly is not required to present all things with the force and effect of law before the governor for concurrence or veto. A Joint Resolution for suspension of a statute is among those things (Ohio Constitution, Article XVI, Section 1).
Unlike other states, the Ohio General Assembly’s joint resolutions have never had a requirement to be presented to the Governor.
The General Assembly has allowed Governor DeWine to exercise powers that belong only to itself. The General Assembly should resolve to suspend ORC3701.13 and relieve those suffering due to the Governor’s misconduct.
Therefore: the General Assembly passing a Joint Resolution to suspend ORC Section 3701.13, means:
The Ohio General Assembly can now act to relieve us of the Governor’s and his health department’s measures taken during this pandemic.
If the Ohio General Assembly were to suspend ORC 3701.13, it would be a valid “emergency use” of their suspension powers in many Ohioans eyes-- especially those who feel that the Ohio Emergency Public Health Orders have not been equally applied. Many Ohioans would also view this as a reasonable use of suspension power to check Ohio’s Governor.
We implore all Ohio residents, business owners, and taxpayers to urge their Ohio Legislators to suspend ORC 3701.13. With all due haste, force the Governor to end his Public Health Orders or take the Ohio General Assembly to Court. Please encourage your legislator to adopt this simple Joint Resolution.
Whereas, pursuant to Section 18 of Article I of the Constitution of Ohio, the power to suspend laws is exclusively vested with the legislature; and
Whereas, pursuant to Section 1 paragraph D of Article II of the Constitution of Ohio exclusively authorizes the General Assembly to create emergency laws for the immediate preservation of the public peace, health or safety; and
Whereas, pursuant to Section 2 of Article I that the Ohio General Assembly may alter, revoke, or repeal any special immunities or privileges;
Therefore be it
Resolved, that the Ohio House of Representatives, in accordance with Article I, Section 18 power to suspend laws, hereby revokes and suspends Ohio Revised Code 3701.13; and
be it further
Resolved, that upon adoption of this resolution by both chambers of the General Assembly, the Secretary of the Senate shall notify the Governor of the General Assembly’s action with the directive that the Governor issue an executive order or proclamation ending the state of emergency in accordance with this resolution.
be it further
Resolved, that this resolution be transmitted to all Ohio law enforcement agencies and those dealing with pandemic related issues.