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Horowitz: It took coronavirus and the Ohio governor to finally push back against a judge

The Constitution is not a suicide pact, much less a single judge’s convoluted reading of it. This is something every elected official needs to understand, but it took a public health crisis and a moderate Republican governor in Ohio to finally demonstrate this point.

Yesterday, Ohio Governor Mike DeWine, R, made a commonsense call to delay the state’s primary election scheduled for today. Obviously, if we are at the point where all gatherings of more than 50 people are banned, and schools and restaurants as well as many workplaces are closed, it makes no sense to have statewide elections.

However, shortly before 7 p.m., Franklin County Common Pleas Judge Richard A. Frye ruled that the election should continue as scheduled pursuant to state law. Much to the shock of political observers, roughly two hours later, Gov. DeWine announced that election would be pushed off anyway.

“During this time when we face an unprecedented public health crisis, to conduct an election tomorrow would force poll workers and voters to place themselves at a unacceptable health risk of contracting coronavirus,” read a statement from the governor posted at 10:12 pm. “As such, Health Director Dr. Amy Acton will order the polls closed as a health emergency.”

Many commentators and politicians in Ohio were aghast at the governor’s move and called it a “constitutional crisis.”

The outrage on social media was rooted in the premise that judges alone get to decide with finality political questions affecting the whole of the people – either of the country or the state. The reality is that we have three branches of government at the state and federal levels, and there will be times when they disagree and can use their respective powers to push back against each other. The three branches are not a food chain with the judiciary on top; they are a circle of co-equal powers.

The legislature was fully empowered to meet in an emergency session and push back against the governor if the members chose to do so. They declined to push back. Ultimately, a few hours later, the state’s supreme court sided with the governor anyway.

There is a broader lesson here of utmost importance. We are all seeing throughout the country the display of extraordinary powers of even local officials, and certainly the president, during a time of a public health crisis. Ultimately, the courts are one avenue for individuals to redress grievances concerning their individual liberties, but courts do not govern for the whole of the people and most certainly do not have the final say on broad public policy. We must hold all branches of state and federal government accountable, and they must hold each other accountable.

It’s self-evident in Ohio that given the state of affairs in the country now, holding elections would make the state’s election law into a suicide pact. It’s time we learn to apply this on the national level, for immigration policy where absolutely no constitutional rights are implicated.

We allowed the illegal ruling of a single California judge in July 2018 to spawn a massive influx of at least 1 million (known) illegal aliens with cascading effects of drugs, crime, public charge, and yes, a public health crisis at our border. Yet our government refused to turn them back to Mexico until a full year into the crisis. But when it comes to restricting the freedoms of Americans, notice how we are not letting a judge or anyone else stop what elected officials deem necessary for the public interest.

As I’ve noted before, Justice Robert Jackson, who was a champion of individual rights and due process (he authored the dissent in the Japanese internment case), understood that “accepting the doctrine that civil liberty means the removal of all restraints to maintain order” would harm freedom “in the long run.” He famously warned in a case dealing with someone who was inciting riots that “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Obviously, there are limits to striking the right balance between liberty, order, and public safety. We really need to watch vigilantly to ensure that prudent “social distancing” doesn’t turn into downright home confinement, as we are witnessing in countries like Spain. But certainly, delaying a primary election was the right call given the circumstances, despite the law on the books governing the election date.

And how much more is it the right call when a single judge actually violates the law and Supreme Court precedent to attempt to strip the president of his power to keep aliens out of the country in the national interest!

If nothing else, as all layers of government are severely restricting movement and real rights of Americans, we should appreciate the power of the president to keep out foreign nationals when there is absolutely no right to enter our country. This is especially salient given the fact that this crisis, which is now engendering draconian restrictions on citizen rights, was born out of an unwillingness to shut off travel and visas when we could easily have flattened the curve early on.

One last thing…
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