Ohio Republicans go full Calhoun on nullification. Never go full Calhoun

Commentary by David C. DeWitt from Ohio Capital Journal

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Ohio Republicans in the state legislature have apparently decided to go full Calhoun with a proposed bill attempting to nullify not only any federal gun laws they don’t like but also any court rulings related to gun laws with which they disagree.

They do not possess the power to do this under the U.S. Constitution, the Ohio Constitution, or precedent set by the U.S. Supreme Court, the highest court in the land that some Ohio Republicans seemingly believe they have the power to flout. Again, they do not.

As they’ve spent much of the COVID-19 pandemic wailing ignorantly in misunderstanding about the separation of powers in the Constitution and the checks and balances among government branches, they’ve turned most recently to proposing and passing laws defying these elemental aspects of American civics.

Take first Ohio Senate Bill 22, which bestowed upon the state legislature veto authority over executive branch emergency and public health orders by concurrent resolution. Statehouse Republicans declared this was a response to the executive branch allegedly overstepping its authority — the authority the legislative branch itself gave the executive branch through law more than a hundred years ago — and their solution was to overstep their own authority.

You see, the Ohio Constitution requires the General Assembly to actually pass law to exercise the power of law, not resolution. Laws must be signed by a governor, or a governor’s veto overridden by the legislature, in order to be enacted. This is an intentionally cumbersome process. A resolution requires neither. So simply ignoring the Ohio Constitution relieves them of this constitutional burden. The non-partisan Legislative Services Commission warned Republicans of the unconstitutionality of their proposal, and they ignored the LSC too.

This middle finger in the face of the Ohio Constitution was even shepherded through the Ohio House by current speaker and former Ohio Supreme Court Justice Bob Cupp, who should definitely know better.

Why did they do this? They do have the authority to rewrite law if they so wish. They could rewrite Ohio Revised Code and override the governor’s veto in doing so just as well. But apparently ignoring constitutionality was easier. This middle finger in the face of the Ohio Constitution was even shepherded through the Ohio House by current speaker and former Ohio Supreme Court Justice Bob Cupp, who should definitely know better.

Now comes House Bill 62 that seeks to declare any federal law, executive order, administrative action, or court ruling to be “null, void, and of no effect in this state” if it infringes upon the Second Amendment. This attempt by a state legislature to overrule federal law and courts is called nullification, and as a concept, it has never once been upheld in federal court in American history. Its most ignominious test came when the state of South Carolina attempted to nullify federal tariff law in 1832-33, led by slaver and slavery advocate John C. Calhoun.

Courts at the state and federal level, including the U.S. Supreme Court, repeatedly have declared that under the Supremacy Clause of the U.S. Constitution, federal law is superior to state law, and that under Article III of the U.S. Constitution, the federal judiciary has the final power to interpret the Constitution. Ohio even lost its own fight over nullification in a battle against the Bank of the United States in 1824.

But Ohio Statehouse Republicans’ self-contradictory views of home rule and local control appear to be based exclusively on their own political whims and no discernable standards or principles for the exercise of self-government.

Plastic bags? According to the General Assembly, local government has no right to home rule or local control in regulating them. Nor, say Ohio Republicans, can locals decide against allowing the fossil fuel industry to run amok in their communities, injecting waste into their land while these fracking wells provide zero economic benefit to the area affected. But sustainable energy is a severe threat to home rule, the foulest tyranny, according to the Ohio General Assembly and its blissful lack of self-awareness.

And how can we forget the gun issue itself? Ohio Statehouse Republicans appear to believe that the state can trump federal laws relating to guns and ignore any and all courts, but Ohio cities have stepped high above their station indeed for attempting to regulate guns themselves without the General Assembly’s approval.

Power for me and not for thee appears to be Statehouse Republicans’ only real governmental operating ethos.

Power for me and not for thee appears to be Statehouse Republicans’ only real governmental operating ethos.

While the self-contradictions on the roles of levels of government show a political agenda with no consistent civic principles behind it, the real failure here is to take any sort of thoughtful long-view. I can only imagine their caterwauling if Statehouse Republicans were the victims of this kind of power grab instead of the perpetrators. I don’t even have to imagine it. Former Ohio Gov. John Kasich ate Statehouse Republicans’ lunch by using executive power to expand Medicaid in Ohio under the Affordable Care Act against their wishes.

But let’s say Ohio Republicans don’t manage a permanent supermajority in the Statehouse, and that some day, perhaps decades from now, a Democratic General Assembly declares itself above the authority of the courts to decide issues of religious freedom, or abortion rights, or LGBTQ rights, or gun rights. Do you think Ohio Republicans would humbly accept the consequences of the path they’ve endorsed and chosen, or do you think they’d play the shameless hypocrite and contradict themselves entirely? I know my bet.

It’s hard to take people seriously who do not take themselves nor the basics of American civics seriously.

Due to extreme gerrymandering and the extremist and corrupt politics it breeds, however, Ohioans will be forced to continue to endure for some time longer a General Assembly that sees a radical faction of one political party and high-dollar donor special interests as their only true constituencies.

The rest of us and our pesky constitutions, judicial precedents, rule of law, checks and balances, and separation of powers be damned.