As Ohio lawmakers face public pushback over legislation that would make sweeping changes to the state marijuana law approved by voters in 2023, one legal scholar says the state Constitution could ultimately limit how drastic those adjustments could be.
“When you look closely at the text, the structure and the history of the Ohio Constitution’s statutory initiative provision, it strongly suggests that the Constitution places real limits on the General Assembly’s power to alter initiated laws,” Derek Clinger, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, said at a webinar last Tuesday.
As Ohio lawmakers face public pushback over legislation that would make sweeping changes to the state marijuana law approved by voters in 2023, one legal scholar says the state Constitution could ultimately limit how drastic those adjustments could be.
Ohio Constitution Limits Legislative Changes To Voter Initiatives
“When you look closely at the text, the structure and the history of the Ohio Constitution’s statutory initiative provision, it strongly suggests that the Constitution places real limits on the General Assembly’s power to alter initiated laws,” Derek Clinger, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, said at a webinar Tuesday.
“Now, to be clear, I don’t think the Constitution completely prohibits the legislature from making changes,” Clinger added, “though I actually think there’s a better argument for that position than for the one that says the lawmakers have complete discretion to change initiatives.”
Clinger’s comments were part of an online talk hosted by Ohio State University law school’s Drug Enforcement and Policy Center, titled (Un)Checked Power of the Ohio General Assembly: Can Legislators Override Voters’ Will on Marijuana Reform? In it, speakers described how legislative efforts this session have sought to undercut many of the provisions passed by voters in the state’s 2023 legalization law, Issue 2.
Advocates have criticized the legislation—SB 56 and its House counterpart, HB 160—as restrictive measures that would undermine the will of voters.
“There’s been an assumption that the General Assembly has the complete discretion to change or even fully repeal the initiative,” Clinger said. But the state Constitution “does not address this scenario in explicit terms,” and state courts “have never actually weighed in on this issue.”
General Assembly Power-Sharing With People Of Ohio
The state Constitution’s section on initiative power is “a reservation of legislative power by the people of Ohio to the people of Ohio,” he asserted. “It did not come from the General Assembly. And the effect is that the General Assembly is in, really, a power-sharing arrangement with the people of Ohio when it comes to lawmaking.”
The Constitution doesn’t say specifically whether lawmakers can amend voter-approved initiatives, though it does spell out a process for the legislature to adopt or offer alternatives to public proposals before a matter goes to voters. It also sets limits, such as around the scope of a proposal—the so-called “single subject” rule—and on certain tax issues.
“What this shows to me is that the framers of the provision knew how to write clear limits on the power,” Clinger explained, “yet they didn’t expressly say that the General Assembly would be free to change or even repeal initiated law after an election.”
In further language about initiatives, the Constitution says that laws “may be passed to facilitate their operation but in no way limiting or restricting either such provisions or the powers herein reserved,” he added.
“This anti-subversion clause seems to most directly address the scenario of whether legislators can amend or repeal voter approved initiatives,” Clinger said. “They can, but only if the change facilitates the initiative without in any way limiting or restricting it.”
Clinger’s interpretation is the subject of a forthcoming Case Western Reserve Law Review article about the constitutional limits on legislative changes to initiatives in Ohio, a version of which was posted online in April.
Another speaker at the webinar, Patrick Higgins, policy council at ACLU of Ohio, said that even some lawmakers have raised concerns that certain pieces of the legislation “might be unconstitutional or unimplementable.”
“But the common refrain in the Statehouse is, ‘It’s called the revised code for a reason. We can make tweaks to it,’” Higgins said. “I think the message has been resoundingly clear,” he continued: “This is not what voters wanted.”
Already the House Judiciary Committee has taken steps to soften the restrictive bill, SB 56, in response to public pushback. Changes approved at a hearing late last month, for example rolled back some of the strict limits included in a verson of the measure passed by the Senate in February, including a criminal prohibition on sharing marijuana between adults on private property.
Members said at the time that further amendments to the plan were forthcoming.
Read more at Marijuana Moment