Ohio for Ohioans Amendment: Good idea, but needs work

Yesterday, I introduced the proposed "Ohio for Ohioans" Amendment to the Ohio Constitution to provide a means to effectively enforce nullification of federal statutes in violation of the U.S. Constitution and state statutes in violation of the U.S. and Ohio Constitutions.

This proposal presents several constitutional and legal problems.  Foremost among them is its rather gross violation of the separation of powers principle. The proposed amendment allows the Governor and Attorney General to "collectively" form a Constitutional Review Committee to "compel" the Supreme Court to rule on legislation deemed unconstitutional within 30 days (of what?). It also allows the Governor and Attorney General to "compel" the Ohio General Assembly to invoke impeachment proceedings against public officials who violate their oaths of office. These provisions suggest that their author is not well educated in constitutional law; because one of its most fundamental principles is that the Executive (Governor and statewide elected officials), the General Assembly, and the courts cannot "compel" each other to do anything. The General Assembly initiates impeachment proceedings on its own volition. The Ohio Supreme Court rules on cases that originate in Ohio's trial courts.


Another example of sloppy legal language lies in the statement that

All Ohio Citizens shall have legal standing in all Ohio courts and jurisdictions to challenge the constitutionality of any Ohio law, federal Law, and all government imposed rules, regulations, and mandates that directly affect them on the behalf of all Ohio Citizens.

No. The existing legal procedure is established to maintain an orderly process. This paragraph should omit "in all Ohio courts and jurisdictions."  To apply this clause as stated would make mincemeat of the Ohio judicial system. The amendment should enable all Ohio citizens to challenge constitutionality by filing suit in the county Court of Common Pleas or in a special state trial court established for this purpose. Even so, who will be the trial lawyer to defend the federal government? I cannot imagine any federal attorney deigning to follow a state procedure in what the feds are sure to consider a gross violation of the Supremacy Clause.


I would favor a well-written amendment to assert Ohio's sovereignty, and this one comes closer; but it needs the hand of an attorney who is skilled in constitutional law.

State sovereignty amendment introduced

Steve Kraus is a candidate for Congress in Ohio's 9th District (a district that is, tentatively, a string bean following the Lake Erie shore between Toledo and the eastern edge of Lorain County (between Lorain and Cleveland). In his "Hope for Ohio" website, he endorses the "Ohioans for Ohio" amendment to the Ohio Constitution, the text of which is at the end of this post.

The Ohioans for Ohio amendment is intended to assert Ohio's state sovereignty and right to nullify unconstitutional federal laws; and to hold Ohio's elected officials accountable for enforcing Ohio's sovereignty. It is sure to be controversial, because for many Ohioans (and probably, the U.S. Supreme Court), it will appear to be a challenge to the Supremacy Clause in the U. S. Constitution, Article VI, Clause 2, which reads:

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.

The legal basis for the Ohioans for Ohio amendment lies in the phrase "which shall be made in Pursuance thereof." A reasonably literal interpretation of that phrase strongly suggests that any laws that are patently unconstitutional (not being made "in Pursuance thereof") are null, void, and no law. This then brings up the central issue of nullification. Do the states have the right, as Thomas Jefferson and James Madison* asserted in 1797, to provide a check on the Supreme Court by nullifying unconstitutional federal laws within state boundaries? The Ohioans for Ohio amendment is careful to state that it does not apply to "any law, rule regulation, or mandate... not in contention with the prescribed authority granted to the federal government by the Constitution of the United States of America."

This proposal is much more concise than the amendment proposed in 2009 by the People's Constitutional Coalition, and actually comes close to the improvements I suggested to that amendment; but it still needs work. Tomorrow, I shall explain why.

Here is the text:

Be it resolved by the people of the state of Ohio,

(A) Declaration of State Sovereignty
The State of Ohio hereby claims its sovereignty, pursuant to the Tenth Amendment to the Constitution of the United States of America and shall exercise self-determination and self-rule over its government, commerce, education, environment, and energy resources within its domain and within the interests of Ohio citizens and according to law, unconstrained of all foreign authorities, and not in contention with the prescribed authority granted to the federal government by the Constitution of the United States of America. Any law, rule, regulation, or mandate which is not compliant to the Ohio Constitution or the Constitution of the United States of America shall be deemed unconstitutional, null and void and without legal force or effect within Ohio.

(B) Enforcement of Constitutions
The Governor or Attorney General are hereby vested with the power to compel the Supreme Court of Ohio to submit a decision within thirty (30) days regarding the constitutionality of any Ohio law, rule, regulation, or mandate or any federal law, rule, regulation, or mandate, whenever it appears that said law rule, regulation, or mandate may not conform or be in compliance to the Ohio Constitution or the Constitution of the United States of America, respectively. The Governor and Attorney General, collectively have the authority to form a Constitutional Review Committee and to vest this committee with the power to compel the Supreme Court of Ohio for said decisions. All Ohio Citizens shall have legal standing in all Ohio courts and jurisdictions to challenge the constitutionality of any Ohio law, federal Law, and all government imposed rules, regulations, and mandates that directly affect them on the behalf of all Ohio Citizens. The Supreme Court of Ohio shall provide a process for such challenges which demonstrate viable Constitutional merit.

(C) Violation of Oath or Oaths
It shall be unlawful for any elected public officeholder to violate their oath or oaths in accordance with Section 7 of Article XV of the Ohio constitution. The Governor and Attorney General, collectively or individually, are hereby vested with the power to compel the Ohio General Assembly to invoke impeachment proceedings against such alleged offenders, in accordance with Section 23 of Article II of the Ohio constitution.

* Keep in mind that James Madison is known to history as the "Father of the Constitution" and one of its most fervent supporters in the ratification debates. He surely would have considered the intent of the Framers when writing it.

We need to set priorities!

Glenn Beck likes to compare President Obama to a magician by saying that we always have to watch what his other hand is doing. The powers that be have thrown so much at the liberty movement in the last year, that it is hard to know where to direct our efforts. This could be intentional. If we split ourselves into many different directions, none of us will be effective. 

One of my most persistent critics likens me to a "gerbil in a wheel, spitting out worthless posts about secession-is-just-around-the-corner almost daily," a comparison I find laughable, but one which could become apt if we fail to focus on priorities. 

As a business analyst, I have to recognize that there are three constraints to every project: time, cost, and people. You cannot cut all three at the same time. If you want something done faster, you need more people, more money, or both. If you cut costs or people, you will probably need more time. 

Applying this to Ohio's liberty movement, we need to ask – among the many urgent needs we have to regain our freedom, which should we tackle first?

I observe that we can express most of our requirements as pairs -- actions needed in Congress that can be complemented or replaced by state actions. I list these pairs below. Note that I am ignoring the state budget and SB 5 because both are certain to pass in some form, most likely in a way that will work in the direction of smaller government.

My question to my readers is, which of the following should we be pursuing first, second, and third? Please comment; even if it is nothing more than "1.x, 2.y, 3.z."

	Actions by Congress	Actions by the State of Ohio
a	Refuse appropriations for the Libyan war.	Governor Kasich to refuse deployment of Ohio National Guard to Libya.
b	Repeal national health care, or "Obamacare."	Nullify mandatory health care in Ohio (legislation).
c	Abolish the Federal Reserve Bank.	Authorize state and local tax payments in gold or silver: "Honest Money."
d	Balance the budget.	Intercept federal taxes (through the Ohio Department of Taxation) pending a state board or legislative ruling on the constitutionality of federal expenses.
e	Repeal the USA PATRIOT Act.	Nullify the use of body scanners and aggressive patdowns in Ohio airports.
f	Modify or repeal federal gun control laws.	Nullify gun control for weapons both made and sold in Ohio (intrastate commerce). (Note: link is to bill in previous General Assembly)
g	Repeal federal drug laws, particularly those related to marijuana.	Nullify federal prohibitions on the use of marijuana as a prescription drug.
h	Repeal federal food laws that affect intrastate commerce in farm produce.	Nullify federal regulation of farm produce both grown and sold in Ohio (Manna Storehouse – but note that Manna Storehouse was an abuse of state power).

Ohio Senate introduces Health Care Amendment similar to the Ohio Project's

Yesterday, State Sen. Timothy Grendell (R-Chesterland) introduced Senate Joint Resolution 1, which would introduce an amendment to the Ohio Constitution forbidding the federal government from compelling anyone to purchase health care insurance. Like the Ohio Project and Bill Yarbrough, I give qualified support to the resolution.

In his Yarblog, Mr. Yarbrough observes the subtle difference in language between the Ohio Project's petition language (which is less than 100,000 signatures shy of their goal), and that of SJR 1.

From the Ohio Project petition amendment language:

Section 21 (A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.
Section 21 (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.
Section 21 (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

   From SJR 1 amendment language:

Section 21 (A) No law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.
Section 21 (B) No law or rule shall prohibit the purchase of health care or health insurance or sale of health care or health insurance.
Section 21 (C) No law or rule shall impose a penalty or fine for the purchase or sale of health care or health insurance.

The difference in language can easily lead to a court interpretation that limits "law or rule" to Ohio law, thus defeating its original purpose, to state that no federal law or rule shall compel, prohibit, or impose.

The Ohio Project Amendment and SJR 1 share another problem. They only address forced purchase of health care, an egregious violation of the Constitution, to be sure; but implicitly accepting the notion that the rest of the Patient Protection and Affordable Care Act is Constitutional.

SJR 1 as currently written is too weak. Ohioans deserve better, something like Nebraska's LB 515, on which I reported Jan. 25. We have the most liberty-minded General Assembly in many years. It is not politically unrealistic to work for a tougher resolution; which is not to say we'll get it, or that it would be approved as a Constitutional Amendment by the requisite three-fifths majority in both houses.

Bottom line: Ohio is a sovereign state. Our General Assembly needs to remind both the federal government and the people of Ohio that we are a sovereign state. SJR 1 and HB 11, in combination, are better than nothing; but they are not what we should be striving for.

Cutting off the money supply

Last year, we discussed with Ohio legislators an idea for the State of Ohio to intercept federal tax money pending a determination of the constitutionality of its purpose. After considerable research and discussion, we were unable to find a feasible way to carry this out (but please feel free to e-mail me or comment if you have any ideas!)

Tom Mullen is looking at a different approach to the same end. Simply block enforcement of the tax laws until the feds balance their budget. Other legislation has been suggested to block federal enforcement of Obamacare, firearms law, and medical marijuana -- why not this? Writing for LewRockwell.com, Mr. Mullen suggests:

This would be accomplished in the same way as several other recent nullification/interposition efforts. The state legislatures would pass a law indicating that no person or business in their state could be prosecuted or fined by the federal government for failing to file an income tax return or failing to pay their quarterly payroll tax deposits, so long as said filings and payments were made within sixty days of the Congress passing a balanced federal budget. For those who still trust the people less than they do the government, a stipulation could be added that the funds go into escrow and be audited by the states, if necessary.

This would accomplish two things. First, it would reestablish exactly who works for who in this relationship. Obviously, elections have failed to do that. More importantly, it would work. The blind fear that would grip our legislators when they realize that the party is really over would at least scare them sober enough to balance what would still be an over $2 trillion budget. While it wouldn’t solve our long-term problems, that truly would be a start.

Bloated governments are imploding all over the world and ours is poised to do likewise for all of the same reasons. Now that we have seen what “extremism” really looks like in Greece, Egypt, and Tunisia, this proposal should strike any rational person as reasonable and moderate. We do not need a rebellion or violence to balance the federal budget – just a little adult supervision.

I especially like the part about adult supervision. The children are in Washington, the adults are in the states. We the grown-ups need to get back into control.

As Nike says, "Just DO it!"

Update Jan. 26: My good friend Teri Owens advises me that the same bill has been introduced in Texas (HB297), Montana (SB161), Indiana (SB505), Oregon (SB498), Maine (LD58), Wyoming (HB0035), and Oklahoma (HB1276). Now it's our turn.

The Hill reports that Nebraska, with some prodding from that state's Campaign for Liberty, has introduced in its State Senate* LB 515, a bill to nullify Obamacare simply and completely. Section 3 of the bill reads:

Sec. 3. (1) The Legislature declares that the federal Patient Protection and Affordable Care Act is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the founders and ratifiers and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

Part (3) of Sec. 3 is even more interesting:

(3) Any official, agent, or employee of the United States or any employee of a corporation providing services to the United States that enforces or attempts to enforce a federal act, order, law, statute, rule, or regulation of the United States government in violation of the Federal Health Care Nullification Act is guilty of a Class IV felony.

State officials who enable the enforcement of Obamacare will be guilty of a Class I misdemeanor.

Some members of Ohio's liberty movement have expressed the concern that our HB 11 is more of an end run around nullification by implying that parts of the Patient Protection and Affordable Care Act are constitutional. At the same time, The Ohio Project's amendment only addresses mandatory health care. What we really need is a complete and blanket nullification of the law all in one place, as Nebraska has proposed.

* Nebraska has a one-house (unicameral) state legislature, which is known as the Senate.

New General Assembly wastes no time asserting Ohio’s sovereignty

The 129^th General Assembly is barely a week old, and already State Representatives Barbara Sears (R-Sylvania) and Ron Maag (R-Warren County) have introduced a bill (HB 11) to prohibit Ohio departments from enforcing the federal Patient Protection and Affordable Care Act (inelegantly referred to as “Obamacare”), unless it is pursuant to an act of the General Assembly, and the affected agency submits a report to the General Assembly with the following information. [For brevity, the word enforce below means to “implement and enforce” in each instance.]

•  A citation from the federal Act requiring the department to enforce the provision,
•  A list of waivers or options available to the state under the provision,
•  The steps the department would have to take to enforce the provision,
•  What individuals would be affected if the department enforced (or did not enforce) the provision,
•  The cost to the State of Ohio or its citizens of enforcing the provision, and
•  A list of consequences to the state if the department or agency does not enforce the provision.

 This bill does not duplicate the Ohio Project’s proposed Constitutional amendment exempting Ohioans from the requirement to purchase health care coverage. The Ohio Project is still circulating petitions for that amendment, which it expects to place on the November 2011 ballot.

I have included HB 11 on a new legislative spreadsheet, which may also be accessed from the Legislative Action tab above..