Ohio gov thinks a law is making kids sick and says it’s unconstitutional. He won’t challenge it

Some are questioning Gov. Mike DeWine’s sincerity when he says he’s doing all he can to fight the spread of coronavirus among children.

DeWine and the leaders of children’s hospitals are in a panic over the lack of masking in Ohio schools. Hospital admissions of children with covid are up 536% since July and the hospitals report that they’re being overwhelmed by the surging delta variant and an unusual jump in other respiratory illnesses.

DeWine and the hospitals are pleading with local school officials to enact their own mask mandates because DeWine says his hands are tied by Senate Bill 22 — a law the GOP-controlled legislature passed in March over his veto. 

It circumscribes the governor’s ability to issue health orders such as his 2020 statewide mask mandate by limiting them to 30 days. After that, the legislature would have to sign off in order to continue them.

Asked on Tuesday why he wouldn’t impose a mask mandate as a temporary measure, DeWine said he didn’t want to muddy the issue.

“All that will do is cause a great deal of confusion and then I think people would say, ‘Well there’s no mandate on, there’s no requirement on, we can go back, there’s really no reason to keep masks on,” the governor said. “I’m afraid what would happen is we would slide backwards, we would go the wrong way.”

However, some noted that when SB 22 was passed, the governor, who is a lawyer, didn’t believe it would stand up in court.

“Lots of talk out there excusing @GovMikeDeWine‘s refusal to issue a school mask mandate,” Katie Paris, founder of the group Red Wine and Blue, tweeted. “His hands are NOT tied. He could issue a mandate today and if the legislature fights it, he could take them to court.”

She followed up with a thread that included the statement DeWine issued when he vetoed SB 22.

“We believe that significant portions of SB 22 are unconstitutional,” the statement says. “Parts of the bill violate the separation of powers doctrine embedded in our Ohio Constitution; other parts violate Article II, Section 15 of the Ohio Constitution, proscribing how laws must be made; and even other parts of the bill likely violate Article IV, Section 5 of the Ohio Constitution, by exercising power reserved to the judiciary.” 

The Legislative Service Commission also questioned the legality of a draft of the bill, writing that it “might be vulnerable to a constitutional challenge on the grounds that the legislature cannot take such an action by resolution.” But for some reason, it was dropped from the final version of the bill, which was otherwise unchanged.

Asked why DeWine doesn’t just impose a mask order and fight it out in court, Press Secretary Dan Tierney on Wednesday said it was too risky.

“Somebody who’s advocating for that is hoping that a judge puts on an immediate restraining order that would allow (the mask mandate) to continue, but you also have to weigh the chance that a judge could rule the other way: that the legislative recision is perfectly valid,” Tierney said.

He added that DeWine’s current approach — persuading local officials to put on their own mask mandates — is making rapid progress. The portion of students in schools with mask mandates has jumped from 35% on Sept. 1 to 54% on Tuesday, Tierney said.

“We went from a little over a third to a little over a half of students being in a school where everybody wears a mask in less than two weeks,” he said.

But while DeWine is blaming the GOP supermajority in the legislature for sapping his ability to fight his coronavirus, on Wednesday he signed off on legislative maps that would preserve that supermajority. Even as DeWine helped to approve the maps, he questioned whether they would survive a court challenge, Gannett journalist Haley BeMiller reported.

The move by DeWine — who has also criticized President Joe Biden’s vaccination-or-test mandate — prompted a blast from John Hagner, campaign manager for Dayton Mayor Nan Whaley, who is seeking the 2022 Democratic gubernatorial nomination.

“Mike DeWine on Tuesday: the gerrymandered Republican supermajority is keeping me from protecting kids and keeping them in school,” Hagner tweeted. “Mike DeWine on Wednesday: ok, let’s have four more years of an even more gerrymandered Republican supermajority.”

Reporter Jake Zuckerman contributed to this report.