Buckeye Institute, DeWine, defend ending pandemic unemployment assistance

BY: SUSAN TEBBEN – Ohio Capital Journal

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A think-tank in favor of Gov. Mike DeWine’s decision to end supplemental unemployment assistance despite a continued pandemic impacting the economy is yet again pushing the Ohio Supreme Court to support the decision. The governor himself is also weighing in.

The federal supplemental assistance from The CARES Act expired on Sept. 4, 2021 though DeWine ended it in Ohio on June 26, 2021.

In a court filing this week by attorney (and former state Senate president) Larry Obhof, the Buckeye Institute called the early ending of additional Federal Pandemic Unemployment Compensation (FPUC) “sound economic policy.”

The group argued in their second push for the court to land on the side of DeWine that “neither state nor federal law compels Ohio to continue participating” in the unemployment program.

“Federal law clearly indicates that states are free to participate and, if they so choose, to withdraw from the program as well,” the institute wrote in the Jan. 10 court filing.

Ohio residents Candy Bowling, Shawnee Huff and David Willis sued the DeWine administration in September to get the additional $300 monthly unemployment benefits reinstated, which they say are needed to help with household expenses such as rent, food and medical expenses since they were laid off due to the pandemic, according to their lawsuit.

What’s still up to the court to decide is whether the governor, not the state as a whole, was required to continue participating in the program. Obhof says in court documents that he is not.

“Because the Governor acted lawfully, the courts may not substitute their judgment for his policy decision,” he wrote.

The group argues, as DeWine did when he decided to cut the benefits, that the additional payments were “delaying employees’ return to work,” and ending the support brought more employees back, though businesses across the nation are still struggling to get back to full staffing.

“The Governor’s decision to end the additional FPUC payments was not a magic talisman for Ohio’s economy, but it was sound economic policy,” the institute wrote.

DeWine filed his own brief arguing a lower court’s ruling saying the governor shouldn’t have ended the assistance “rests on a misreading of a state law” requiring the director of the Ohio Department of Job and Family Services to adopt rules and regulations necessary to “secure to this state and its citizens the advantages” of federal statutes, in this case including the CARES Act funds.

“No state law – ‘long-standing’ or otherwise – compelled Ohio to participate in the program here at issue,” DeWine’s brief stated. “Because nothing compelled the governor to participate in the program, the governor’s withdrawal did not contradict any policy mandate from the legislature.”

DeWine’s son, Supreme Court Justice Patrick DeWine, recused himself from this case “to avoid any appearance of impropriety that might result from my father’s public involvement in this matter,” according to court documents.

In supporting the governor, the Buckeye Institute interpreted the additional unemployment benefits as a negative for the economy because Goldman Sachs economists cited in their brief estimated the median recipient of the benefits received “roughly 90% of their prior wage,” though it did not specify what the median wage for those beneficiaries was or whether it was enough to support Ohioans in essential ways.

The Buckeye Institute brief joined other Ohio groups who supported governor’s decision. In August of last year, the Ohio Chamber of Commerce, the Ohio Business Roundtable, the Ohio Restaurant Association, the Ohio Hotel and Lodging Association, the Ohio Grocers Association and the Ohio Trucking Association filed their own brief saying the FPUC benefits “will result in a scenario where many individuals will make more in unemployment than when working,” calling the staffing issues for businesses an “artificially created labor shortage.”

The groups levied their support once again in a Jan. 7 filing, which also included the Ohio Manufacturers’ Association, the Ohio Council of Retail Merchants and the Ohio Farm Bureau Federation.

In this filing, they made a matching argument with the Buckeye Institute that the governor is allowed to “exercise discretion regarding Ohio’s participation in federal programs.”

The state Supreme Court denied two attempts in the case to speed up the process of deciding the case, but has not set other deadlines in the case, including whether or not they will have an oral argument to hear from attorneys on both sides.