COLUMBUS, Ohio — The conservative quest to limit the governor’s emergency powers stalled out less than 24 hours after the Ohio House passed a bill to limit stay-at-home orders to no longer than 14 days.
“We are in the middle of an emergency now. An emergency we have not faced for 102 years,” Gov. Mike DeWine said during his briefing Thursday. “I don’t understand why anyone would think this is a great time to be changing the law, to be taking away the power of the executive branch to protect people.”
The lifelong Republican promised to veto any bill that “that gets in the way of our ability to protect the people of the state of Ohio.” And though his party has enough seats in the House and Senate to override him, the GOP remains divided on when or how to change these rules. And therefore, it’s almost certain Senate Bill 1 never becomes law as currently written.
“We wasted several hours of taxpayer money and time debating a bill that does not have a pathway forward only to make a political point,” said House Minority Leader Emilia Sykes, D-Akron. “I get five calls a day about, ‘How can I get my unemployment compensation? What am I going to do with my kids when I go back to work?’ These are the real issues we need to be figuring out.”
Ohio’s executive power
Ohio, like other states, has given longstanding and sweeping authority to the health department and governor’s office to handle a public health emergency.
Some of the power that DeWine and Ohio Health Director Dr. Amy Acton have wielded can be traced to a law adopted after the September 11, 2001, terrorist attacks, said James Hodge, director of the Center for Public Health Law and Policy at Arizona State University.
Hodge and other legal experts developed a model bill for state legislatures to use as they grappled with how to respond to public health emergencies, such as the anthrax scare.
States empower their emergency management agencies for general emergencies like a flood or a tornado, but Hodge said EMAs lacked the public health expertise needed to respond to an outbreak. States, he said, wanted their health departments in charge during a pandemic.
Thirty-eight states — including Ohio — adopted all or part of that model legislation, which expanded executive authority related to quarantine and isolation orders, Hodge said.
When Ohio adopted portions of that legislation in 2003, it extended the health department’s authority to cover isolation as well as quarantines. But the broader power that has been used to limit the size of gatherings, for example, already was in law.
While states have had to invoke those powers ocassionally since 2001, the COVID-19 outbreak has been the largest-scale deployment to date. And that, Hodge said, has crystallized the government’s power during a public health emergency for those who didn’t understand it.
“What COVID-19 has exposed is how far government can actually go in real time to respond to these substantial threats,” he said. “I think it’s shocked a lot of Americans to realize that government can do this; it acts constitutionally when it does so.”
The Republican divide
Conservative Republicans such as Rep. John Becker from southwest Ohio aren’t comfortable with any governor holding that kind of power. They want all health department orders to be advisory unless the entire legislature approves them.
“We looked at that,” said House Speaker Larry Householder, R-Glenford. “We decided no, that’s an overreach. That’s probably too much.”
He supported the changes to Senate Bill 1 that would require DeWine and Acton to come before a bipartisan committee made up of five senators and five representatives if she wanted to extend an order past two weeks.
“I don’t see it in any way affecting what the governor is trying to do,” Householder said. “I commend what the governor has done so far, but I think there has to be legislative oversight.”
Two House Republicans, Dave Greenspan and Gayle Manning, joined Democrats in voting against that plan Wednesday.
Greenspan, a former council member for Cuyahoga County, said during a committee meeting on Senate Bill 1 that health department orders should be enforceable for 30 days and be automatically extended rather than automatically ended if the oversight committee failed to meet in time.
Meanwhile, Senate President Larry Obhof, R-Medina, told reporters that his primary focus was on measures that provide economic certainty for Ohioans such as distributing federal aid dollars, fixing the unemployment fund and limiting the liability of businesses that reopen in the coming weeks.
“I agree with President Obhof that those are the things we should be addressing,” Sykes told The Dispatch.
The Akron lawmaker, who holds a master’s degree in public health, also said the reason a governor and his or her administration holds the power in a situation like this is because they are the branch of government best suited to act quickly and decisively.
“To say that there is no oversight is not totally accurate. The health director had to be confirmed by the Senate. She was confirmed unanimously,” Sykes said. “If the issue is that the Senate did not appropriately vet the director or any of the directors, that’s the check that we had.”
And, Skyes noted, DeWine could remove Acton from her position any time he wanted.
GOP challenges in other states
Ohio Republicans aren’t the only ones challenging the authority of stay-at-home orders. In Washington and Wisconsin, Republicans have asked their state supreme courts to decide whether their Democratic governors issued lawful orders.
Michigan Republicans introduced bills in late April that would strip the powers of Democratic Gov. Gretchen Whitmer and potentially reverse her latest stay-at-home order.
Similarly, the Buckeye State is not alone in giving its governors broad executive powers during a health crisis.
“Most other states do give a health secretary or a governor, especially in declared emergencies, this sort of broad swath of power,” Hodge said.
In Indiana, the state health department can close schools, churches and forbid public gatherings if officials think that would stop an epidemic. Wisconsin’s health department can close schools and forbid public gatherings to control outbreaks. Gatherings can be limited by health orders in West Virginia.
Health departments and directors in at least eight other states have similar powers as well, according to the Association of State and Territorial Health Officials.