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Horowitz: Ohio legislature delivers smackdown to Gov. DeWine’s royal COVID powers

Op-ed

First legislature to pass meaningful limits on emergency powers

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One year after "15 days to flatten the curve," aka the greatest infringement upon individual rights by executive power in American history, legislatures have been shockingly slow and tepid in making sure this mistake never happens again. However, there are some potential bright spots, one of them in the Buckeye State.

In Ohio, we have the first legislature in the country to finally pass a meaningful limitation on emergency health powers through both chambers, with margins likely large enough to override a gubernatorial veto. Gov. Mike DeWine is irate that legislators think they have the power to check him in his capricious edicts governing the most intimate facets of human life and commerce. Yet despite his promise to veto the bill, every legislator in his own party will likely override his veto.

Last week, the Ohio House and Senate passed the final version of SB 22, which would limit the scope and duration of the governor's emergency health orders. SB 22, sponsored by Sens. Terry Johnson and Rob McColley, passed in the Senate 25-8, with every Republican supporting it, and in the House 57-38, with several Republicans absent and only three Republicans voting against it.

The main provision of the final version will allow the legislature to strike down, via a concurrent resolution, any emergency health order after 30 days. The governor's emergency declarations would automatically expire after 90 days if the legislature fails to act. More importantly, specific orders and policies issued by the governor pursuant to the emergency or any standing order issued by the health director to slow the spread of a virus (under the existing non-emergency infectious disease statute) can be terminated immediately. Thus, business closures or mask mandates could be terminated from day one, even before the legislature is able to cancel the underlying emergency after 30 days.

The bill would also systemically reform the entire scope of state police powers over quarantine by carefully aligning state quarantine policies with the more traditional, limited use against targeted individuals who are sick. SB 22 defines "isolation" and "quarantine" to prohibit state and county health departments from isolating anyone who has not been "medically diagnosed" with the illness or quarantining healthy people who are not diagnosed with an infectious disease or in direct contact with someone who was medically diagnosed with the illness.

Finally, local boards of health can only target specific businesses for any regulations when they experience unusual outbreak. They can only shut down schools that experience an outbreak, and even then, they can only do so for the limited time it takes to sanitize the school. This precludes the entire premise of mass civil liberty violations and restores the concept of quarantine to its historic application, which was limited in time and scope.

In many ways, this is a somewhat modest bill, in the sense that it gives DeWine 90 days for an emergency health order. This bill should be the bare minimum for what other states propose. How long does it usually take to convene a legislature? Ideally, governors should not be able to legislate control over people's lives for more than a few days without the legislature weighing in. Yet DeWine believes he should have authority to forcibly mask and shut down people for years on end without any legislative input. DeWine charged that this bill "clearly violates the separation of powers."

How dare the legislature attempt to legislate when it actually matters? Leave it to the executive!

DeWine believes that striking down an emergency order with a concurrent resolution violates the state's constitution. The problem is that his own 2019 budget contained a similar proposal:

Besides, while a governor is violating every aspect of the federal Constitution and every clause of the Bill of Rights, are we really going to focus on process issues while ignoring his dictatorial power?

The governor is promising to veto the bill this week, but legislative leaders in both houses have told me they feel they have the three-fifths majority needed to override the veto because several House members who would have supported the bill were absent last week.

Republicans have supermajorities in 18 other states, many of them much larger than their majorities in Ohio. It's truly outrageous that no other state appears to be this far along in passing a meaningful bill like SB 22, which has already gone through both houses in Ohio. State legislators need to start asking themselves why they even run for office if they plan to cede power – during the most important and tumultuous times that actually affect our lives – to unelected bureaucrats in the executive branch.

As for DeWine, he stands for re-election next year, with his entire party rebuking him on the issue of our time. That is an ominous sign for him in the upcoming primary, when he is likely to be challenged from the right. By trying to take all the legislative power for himself, he might find himself without any executive power by the end of next year.
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