Separation of Loopholes: Assembly Must Check Kasich’s Abuses

“In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.”  James Madison, The Federalist No. 51

Ever since he announced his plans to toss the decision to expand Medicaid to Ohio’s Controlling Board, Governor Kasich has amassed charges of breaking faith with the people; circumventing the legislature; transgressing the Constitution of the State of Ohio; and violating a principle revered by all Americans—Separation of Powers.

The Governor’s supporters are quick to point out that no law was transgressed, least of all the Ohio Constitution. Yes, they concede, the General Assembly’s biennial budget bill (H.B. 59) forbade the state from accepting federal funds with which to expand Medicaid—but the operable clause was line-item-vetoed, never overridden by the legislature, and therefore never law.  Their premise is that where there is no law, there can be no transgression.

The premise works great—in church. Considering the Governor’s suggestion that Saint Peter will one day grill Ohio legislators for not voting to expand Medicaid, perhaps that’s why Kasich’s supporters are comfortable with it.

But assuming it’s not too far-fetched to think that Ohio’s limited government functions differently than Almighty God, one may stumble into a principle or two that informs citizens and statesmen not only how a government ought to be designed, but how its powers ought to be discharged by its elected and appointed trustees.

One such principle purportedly revered by all is that of Separation of Powers, the division of authority and functional ability into multiple branches of government.  The earliest state Constitutions experimented with it; the Framers at the Constitutional Convention enshrined it; and each of today’s 50 states has made it the cornerstone of its governmental structure.

Yes, yes, we know.  All this is easily said—but actual state government must weather the slings and arrows of outrageous fortunes, markets, court rulings, encroachments from Congress, and reelection campaigns.  It’s easier to wax philosophical about principles in a classroom than it is to craft policies, each affecting millions of people, in Columbus or Washington.  After all, didn’t Aristotle unseat his tutor, Plato, as “The Philosopher,” by proving that ideals may be dear, but real politics is ideals applied?

Sort of.  The problem with this thinking is that rather than applying ideals, its patrons tend to discard them, all under gilded banners such as “pragmatism,” “practicality,” or “making the best of a bad situation.”  On the other hand, sometimes pragmatism is what’s called for; Governor Kasich, at least, has been calling for it for months.  The Governor’s recent actions, however, obscure exactly what principles, if any, he is trying to preserve in his practice.

There can be nothing more frustrating to Governor Kasich’s supporters than the long train of voices that seem to decry his actions without a proper grasp on the relationship between political principle and political practice.  So here is a question that takes principle and practice together:

Even if one grants that the Controlling Board has authority to approve Governor Kasich’s proposal to expand Medicaid, might such action, however legal, constitute a violation of the principle of separation of powers?

Madison, Hamilton, and Jay would say yes.

The authors of The Federalist Papers knew their own strength.  They understood that “power is of an encroaching nature,” and that “parchment barriers”—mere laws written on paper—would not keep a government comprised of the nation’s ablest lawyers and lawmakers from finding perfectly legal loopholes through which to abuse their power.  Madison asks,

Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? . . . [E]xperience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful members of the government.”  James Madison, The Federalist No. 48.

Madison’s point is that even should a citizenry—say, Ohio—spell out in its laws that powers shall be kept separate, the public cannot trust these laws to keep the government’s “more powerful members”—say, a governor—from violating this principle of Separation of Powers.  In fact, he may even violate it without ever breaking the letter of the law.

Equally striking is Madison’s premise that mere legality is inadequate to measure the justice of a ruler’s use of power.  After all, to hold that a government may justly do all that it may legally do is to hold that it is impossible for an absolute monarch to act unjustly.  But this is precisely the logic of the prevailing arguments in support of Kasich: where there is no law, there can be no transgression.

One can only speculate, but supposing that Governor Kasich passes Mr. Madison on his way to St. Peter, what might Madison say?  “So circumventing the Ohio legislature was legal.  What else was it?”

Yet Kasich is not alone to be blamed, if only because the rest of us ought to have predicted (Federalist Papers in hand) that occasional abuses of power are inevitable–nor are they confined to the executive branch.  One commentator has pointed out that the General Assembly’s failure to properly group H.B. 59’s Medicaid expansion clauses was practically—and perhaps even intentionally—an invitation for the Governor to use his line-item veto. If that is the case, then Ohio’s Republican-controlled executive and legislative branches display a collusion of powers rather than a separation.

What is clear is that the people of Ohio (who, if only in theory, are sovereign), and their representatives (at least nominally), oppose the expansion of Medicaid as ordered up by the Affordable Care Act.  Governor Kasich’s deliberate circumvention of both legislative chambers violates the principle of Separation of Powers, however shrewdly he has kept the law in the process. Now, what would Madison have us do about it?

In 1788, the answer was to build checks and balances into the very “fabric” of the government, thus reinforcing the “parchment barriers” they distrusted.  “Ambition,” writes Madison in The Federalist No. 51, “must be made to counteract ambition.”

In 2013, the answer is for Ohio’s legislative branch to activate its ambition.  If our current system permits, without any illegality, a violation of sound principles of government, then it is incumbent upon our legislature to amend the system immediately.  Failure to do so is a sin of omission tantamount to dereliction of duty.

Encroachments upon liberty don’t rain from the sky; they seep through cracks in the wall. Kasich’s actions have exposed Ohio’s need to redefine—legislatively—the Controlling Board’s purposes and powers, to ensure that it can be used only to facilitate the implementation of current Ohio policy, not to make perfectly legal political moonshine.



Featured-Columnist1Michael Hamilton is the English Department Chair at Dayton Christian High School, where he teaches AP U.S. Government & Politics and Honors American Literature.  He is a graduate of Hillsdale College, the owner of Good Comma Editing, LLC, and the Executive Editor and a Co-Founder of OCR.  


All opinions expressed belong solely to their authors and may not be construed as the opinions of other writers or of OCR staff.


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