Constitutional crisis and COVID-19

Editor’s Note: This story was originally published in The New Political’s summer magazine.

First, mass gatherings were prohibited. Then K-12 schools closed. Food and beverage sales became limited to carry-out. In-person voting for the primary election was canceled. Ohioans were asked to stay at home as all nonessential businesses were closed.

As an unprecedented virus created a global emergency, Ohio’s economy and social institutions ground to a halt with orders from the former director of the Ohio Department of Health (ODH), Amy Acton. 

Acton ordered limitations on the typical life of Ohioans in an effort to stem the spread of COVID-19. While each order came with specific reference to Ohio law citing the source of Acton’s power, she was challenged in the state legislature and in court rooms over the constitutionality of her actions. 

Many closures issued through March and April began with Acton invoking her powers found in the Ohio Revised Code. Within the Ohio Revised Code, the ODH is given broad powers in protecting the health and safety of citizens. 

The section begins, “The department of health shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quarantine and isolation, which it may declare and enforce, when neither exists, and modify, relax or abolish, when either has been established.”

Ohio’s stay-at-home order, enacted March 23, was extended until May 1 on April 20, with modifications to the order to allow gradual reopening  throughout May. On May 6, the Ohio House passed legislation to limit the length of Acton’s stay-at-home orders to 14 days, with longer periods of time needing approval from the Joint Committee on Agency Rule Review. 

The bill was unanimously rejected by the Ohio Senate on May 20. State Rep. David Leland (D-Columbus), did not feel the attempt to limit her power was appropriate in the current time. 

Leland said he believes DeWine and Acton handled the unprecedented situation the best they could, potentially saving many lives in the process. 

“They weren’t perfect — nobody said they were — but they were very decisive, and very strong, and I think they should be commended,” he said.

Leland said the governor and the Ohio legislature check the power of the ODH. The director is appointed by the governor and their powers come from laws passed by the legislature. 

“We gave the power to the health department. We can always change it, as far as the legislature is concerned,” he said. 

Leland viewed the “Amy Acton” bill as a reflection of partisanship impacting public health decision making. 

“Unfortunately, politics has creeped into this whole debate about public health, and I don’t know why it has, but for some reason our partisan divide seems to be in everything,” he said. 

Eastman and Smith, a law firm in Toledo, created an “Overview of Public Health Law and Local Health Districts” presentation for local health administrators and lawyers to understand their local and state health powers. 

Attorney Joseph Durham has been advising the Franklin County Health Department during the pandemic. He said ODH orders need to be reasonably related to addressing the pandemic and within the constitutional powers. 

“It’s remarkable to me how far they’ve gone,” he said.

Durham explained that social distancing includes measures such as restricting travel, increasing distance between workers, dismissing schools, restricting public gatherings, isolation and quarantine. 

The Ohio Revised Code states violating orders by the ODH or the local board of health can result in a misdemeanor of the second degree, which carries a punishment of up to 90 days in jail and/or a $750 fine. 

While Durham said that Acton’s orders were within her power, albeit unprecedented, an Ohio court challenged the definitions of “isolation” and “quarantine” to argue the duration of Acton’s orders were unlawfully long. 

On May 20, Judge Eugene Lucci of the Lake County Court of Common Pleas ordered a suspension of ODH stay-at-home orders in the case of gyms and fitness centers.

The plaintiffs in the case, the fitness centers, said Acton’s powers were “impermissibly vague” and argue that the director exceeds her authority by legislating, rather than leaving that to the Ohio legislature, according to the case document. 

Lucci explained the plaintiffs implied the ODH orders were in violation of the Ohio Constitution. The plaintiffs implied Acton violated separation of powers, due process and exceeded the vague rights granted to her in the Ohio Revised Code. 

Lucci wrote that Acton’s orders exceeded the definition of the period of communicability for the disease — experts say COVID-19 may be able to spread from one person to another for up to 14 days — and she has isolated Ohioans for longer than is necessary.

“The director has quarantined the entire people of the state of Ohio, for much more than 14 days,” Lucci wrote. 

The preliminary injunction would have allowed fitness centers in Lake County to open prior to May 26, the date when personal fitness centers were permitted to reopen by the ODH order without penalty if they followed safety guidelines. 

On May 21, Gov. DeWine addressed the decision in a press conference.

 “It’s one decision. It’s a decision, again, that basically said our protocols are fine (and) disputed about when we open,” DeWine said.