“Necessary” Is Not a Constitutional Argument

I hear a lot of bad constitutional arguments justifying this or that federal action. One common justification for expanding federal power is: “This thing is necessary! It needs to be done.”

But it doesn’t follow that the federal government has to do the thing. In fact, the founding generation expected that the states and the people would do most of the “necessary things” – not the federal government.

Tench Coxe was a prominent and influential advocate for ratification of the Constitution and a delegate for Pennsylvania to the Continental Congress in 1788-1789. He later served as Secretary of the Treasury. He wrote three essays published in the Pennsylvania Gazette in early 1788 under the pen-name “A Freeman.”

In these essays, Coxe offered some of the most forceful arguments asserting the limited nature of the federal government under the proposed Constitution. He insisted that many, if not most, of the “necessary” things for society would be taken on by state and local governments, not the federal government.

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Articles of impeachment drawn up against Gov. Mike DeWine over coronavirus orders

Three Ohio House Republicans have drafted articles of impeachment against Gov. Mike DeWine, claiming many of his administration’s coronavirus orders are unconstitutional and violate Ohioans’ civil liberties.

While the chances of DeWine, a Greene County Republican, being removed from office are very slim, the articles of impeachment reflect ongoing dissatisfaction from many conservative lawmakers about the governor’s coronavirus response.

A resolution introduced by state Rep. John Becker, a Clermont County Republican, includes 10 articles of impeachment against DeWine which claim he:

  • Violated the separation of powers by having the Ohio Department of Health issue orders outside the scope of its authority that are “tantamount to creating new laws”
  • “Conspired” with Secretary of State Frank LaRose to cancel the March 17 primary election, citing a health emergency, then tried to reschedule it for June 2 without legislative approval (the legislature subsequently passed a law setting an all-mail primary on April 28)
  • Unconstitutionally ordered the closure of businesses because of coronavirus fears, which “resulted in record-high unemployment, causing not only increased poverty, increased depression, increased despair, and increased suicides, but also the necessity for state budget cuts impacting schools and social programs when they are needed most”
  • “Failed to anticipate or plan for more than a million newly unemployed Ohioans who suffered the additional indignity of being unable to communicate with an overwhelmed Department of Job and Family Services to file claims,” and “demonstrated grotesque discrimination against the medical health and welfare of the general population by denying nonemergency healthcare
  • Ordered the shutdown of schools, “a power that belongs exclusively to the State Board of Education.” After schools reopened, DeWine “ordered that all students wear face coverings, which violates students’ civil liberties”
  • “Has repeatedly proven his incompetence by providing wildly inaccurate forecasts and repeatedly misleading COVID-19 data; and committed misfeasance and malfeasance with his policy prescriptions, which have proven to be far worse than the virus itself.”
  • Had his administration issue a “stay-at-home” order for Ohioans, which violated citizens’ due-process rights and civil liberties.
  • Required Ohioans to wear face masks in houses of worship, in violation of the First Amendment
  • Issued face-mask rule that “promotes fear, turns neighbors against neighbors, and contracts the economy by making people fearful to leave their homes.” The resolution also states that “for the general population wearing face coverings, people are more likely to infect themselves with COVID-19” (Health officials generally agree that wearing a face covering provides more protection than not wearing a mask)
  • Temporarily banned liquor sales to non-Ohio residents in six counties near the Pennsylvania border, in violation of the U.S. Constitution, which gives Congress the power to regulate interstate commerce.

Besides Becker, the other two co-sponsors of the impeachment resolution include Republican state Reps. Nino Vitale of Champaign County and Paul Zeltwanger of Warren County, according to a website set up to promote the measure.

For DeWine to be removed from office, a majority of the House would need to approve the resolution, and two-thirds of the Ohio Senate would then have to vote to convict him.

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