1851 Center Applauds Kasich Agreement on Obamacare Exchange

flagstethoscope-300x200Columbus, OH – The 1851 Center for Constitutional Law today registered its approval, on behalf of conservative and libertarian leaders throughout Ohio, of the Kasich Administration’s agreement to refuse to implement a “state-run” Obamacare exchange.

The Administration’s agreement is significant for several reasons:

  • The agreement averts litigation that would have pitted Section 21, Article I of the Ohio Constitution, the 1851 Center for Constitutional Law, and grassroots backers of the Ohio Health Care Freedom Amendment against the administration (Division (A) of the Health Care Freedom Amendment prohibits the “employer mandate” that a state exchange would have attempted to impose).
  • The agreement means that Ohio will not impose the “employer mandate,” a penalty of up to $3,000 per employee that must be otherwise paid to the federal government by Ohio employers who do not provide government-approved health care insurance for their employees.
  • The agreement means that Ohio will not provide Obamacare “premium assistance,” a taxpayer-funded subsidy to individuals that masks the true increased costs of health insurance premiums imposed by Obamacare (the Administration estimates that Ohioans’ health insurance premiums may increase by as much as 85 percent).
  • The agreement means that Ohio will not assist the federal government in enforcing Obamacare’s “individual mandate.”
  • The agreement means that Obamacare will be significantly more difficult to enforce, dramatically enhancing the probability that the Act will be “re-opened” to debate, amendment or repeal.

While the issue appears esoteric, the impact of the Administration’s decision cannot be underestimated. The Act’s “employer mandate” taxes employers up to $3,000 per employee if they fail to offer required health benefits. But that tax applies only if employers receive tax credits or subsidies to purchase a health plan through a state-run insurance exchange.

The federal government might create exchanges in states that decline to creat e state-run exchanges, but it cannot offer credits through its own exchanges. And where there can be no credits, there is nothing to trigger that $3,000 tax on employers. The Obama Administration appears intent on using the Internal Revenue Service to impose the employer mandate, but there is no legal authority to support doing so, and the regulation attempting to do so is unlikely to be upheld.

Further, it is highly likely that Obamacare will collapse without the employer mandate and tax credits, just as it would have without the individual mandate.

In addition to inviting Obamacare into Ohioans’ lives, the Kasich Administration acknowledges that a state-run exchange would cost about $43 million annually, versus about $1.6 million to participate in the federal exchange.

“We are pleased that the Kasich Administration heeded the clear effect of the Health Care Freedom Amendment (passed in 2011), which prohibited Ohio from enacting a state based Obamacare exchange,” said Maurice Thompson, Executive Director of the 1851 Center. “We can now turn our attention away from the Kasich Administration, and begin to prepare litigation that ensures that Ohio employers will not be subjected to the $3,000 per employee fine, and that Obamacare ultimately collapses under the weight of its own legal infirmities.”

Read the 1851 Center’s explanation of why a state-run Obamacare exchange is bad policy, and violates the Ohio Constitution, here.


November 16, 2012: WKSU NPR: Kasich rejects health-insurance exchanges

November 16, 2012: Ohio Liberty Coalition: Governor Kasich confirms that creation of Ohio’s Obamacare exchange will be left to the feds

November 19, 2012: WYSO Ohio Public Radio: Kasich Tells Feds Ohio Won’t Set Up Its Own Health Care Exchange

November 19, 2012: Insurance News Net: Ohio: No State Health Care Exchange

November 20, 2012: Ohio Watchdog: OH: Step 2 — Sue IRS over Obamacare rule

November 21, 2012: Watchdog.com: VA: NFIB, Cuccinelli weigh Obamacare exchange costs; could Virginia get a pass?

November 23, 2012: Heartlander: Kasich Decides Against Obamacare Implementation

January 10, 2013: Heartland.org: Without State Exchange, Ohio Small Businesses Have Standing to Sue IRS

Legal Center Move to Protect Rights of Ohio Gold and Silver Dealers to do Business

Regulations prohibit advertising and impose warrantless searches

Columbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin the state from enforcing the “Ohio Precious Metals Dealers Act,” against Ohio coin dealers threatened with criminal sanction for advertising their businesses, and sweeping warrantless searches of their business records and properties without probable cause.

The legal action is filed on behalf of Liberty Coins, a Delaware, Ohio coin dealer ordered by the Ohio Department of Commerce to cease all advertising indicating that it purchases gold and silver and all actual purchases of gold and silver, and threatened with a $10,000 fine and jail time if it does not comply.

The Supreme Court has repeatedly confirmed that First Amendment applies to “commercial speech,” which includes advertising. Nevertheless, the Ohio Department of Commerce has begun vigorous enforcement of regulations prohibiting coin dealers from advertising without a license, and requiring a license if they do advertise (conditioned on a state finding of “good character and reputation”). Once licensed, state and local agents may search and seize any item or business record without a search warrant or finding of probable cause, and may do so on a daily basis.

The Department of Commerce enforcement policies, which exempt banks, jewelers, and other special interests, appear to be targeted at preventing theft and resale of gold and silver items. However, the policies punish any coin or precious metals dealer who advertises “we buy gold and silver,” even if that dealer, as Liberty Coins does, purchases gold and silver items exempted by the Act, such as certain collectibles, coins, hallmark bars, ingots, numismatics.

Further, the regulations apply only to coin dealer to advertise, entirely exempting those who do not. The state defines advertising to include business cards and signs in storefront windows making reference to gold and silver.

The lawsuit seeks to restore the right of Ohio retail gold and silver coin dealers to be free from a licensing regime that punishes them on the basis of their speech, and subject them to unconstitutionally sweeping searches and seizures.

“This Act and its aggressive enforcement treats the many Ohio small businesses who participate in gold and silver markets as public utilities at best, and criminals at worst, irrespective of whether they have done harm,” said Maurice Thompson, Executive Director of the 1851 Center.

“The state misguidedly seeks to advance its mission of ‘preventing theft and resale of precious metals’ through gag orders, warrantless searches, and criminalization of innocent small businesses. Fortunately, the First Amendment allows us to protect Ohioans’ rights to engage in truthful promotion of their businesses, and to run a business without constant subjection to unlimited warrantless searches of one’s property and records by state agents. And protect these rights we must: if these regulations are upheld, there is nothing stopping the state from imposing similarly on all business activity with the state.”

The state’s heightened enforcement tactics, which effectively put many coin dealers out of business, come at a time of rising precious metals prices, where despite an already burdensome state sales tax on the purchase of precious metals, an increasing number of Ohioans seek to use gold and silver to protect their savings against potential inflation due to federal government increases in the money supply.


Read Liberty Coins’ Complaint HERE.
Read Liberty Coins’ Motion for Preliminary Injunction HERE.


November 16, 2012:WBNS-10TV: Scrap Metal Fight: A coin dealer is suing the state over scrap metal license requirements [VIDEO]

Federal Court: University of Cincinnati Speech Restrictions on Students Permanently Enjoined

Students supporting “right to work” amendment cannot be arrested for discussing amendment and gathering signatures on campus

uofcinn1Cincinnati, OH – A federal court today permanently enjoined the University of Cincinnati’s blanket prohibition on student political speech on campus as a violation the First Amendment. The ruling, made by Judge Black of the Cincinnati division of the Southern District of Ohio, paves the way for a likely overhaul of many campus speech policies throughout the state and nation.

The ruling also permits members of the student group Young Americans for Liberty (“YAL”) to advocate and collect signatures for the Ohio Workplace Freedom Amendment on campus.

The 1851 Center for Constitutional Law, which also drafted the Workplace Freedom Amendment, took up the students’ case and challenged UC’s policies after UC threatened to arrest student members of YAL if they attempted to gather signatures for the right-to-work cause on campus.

The lawsuit sought recognition that (1) the First Amendment applied to public university property, such as the University of Cincinnati; (2) signature-gathering for petition drives is a protected form of political speech; and (3) UC’s requirement that all UC students register up to 15 days ahead of time before engaging in any political speech on campus violates the First Amendment.

In his June 12 decision preliminarily enjoining UC policies, Judge Black emphasized “It is simply unfathomable that a UC student needs to give the University advance notice of an intent to gather signatures for a ballot initiative. There is no danger to public order arising out of students walking around campus with clipboards seeking signatures.”

In that decision, the Court further ordered UC to craft “more narrowly tailored regulations that regulate student expressive activities . . . only as are necessary to serve a compelling government interest.”

In response, newly crafted University of Cincinnati speech policies permit unfettered free political speech, including signature gathering, by students, without notice to the University, for groups smaller than 25, and regulates only groups of 5,000 or more.

Today’s final order permanently enjoins UC from returning to its old policies, or any variation thereof. The order, an across-the-board rebuke to UC’s policies, enjoins UC from:

  • “Requiring prior notification for the solicitation by students of signatures for petitions;”
  • “Prohibiting all solicitation by students of signatures for petitions in any designated public forum, including the Free Speech Area, the outdoor spaces described in the MainStreet Event Guide, and campus sidewalks;”
  • “Requiring that all student ‘demonstrations, picketing, or rallies’ occur only in the Free Speech Area;”
  • “Requiring 5 to 15 days prior notification for any and all student ‘demonstrations, picketing, or rallies’ without differentiations;”
  • “Imposing or enforcing any policy restricting student speech in any designated public forum, including the Free Speech Area, the outdoors spaces described in the MainStreet Event Guide, and campus sidewalks, that is not individually and narrowly tailored to serve a compelling university interest.

“We are pleased that the federal court has resolved this matter in favor of free speech, and against government control of young minds. UC is an arm of the state that receives state and federal tax dollars since its inception, all in the name of ‘public education,’” said Maurice Thompson, Executive Director of the 1851 Center.

“It was unwise, and ultimately unconstitutional, for UC to advance public education by shielding its students from actual education on public policy issues that affect all Ohioans. Fortunately, the First Amendment allows us to protect the education of UC students from their educators; it further protects the right of students to calmly address facts and arguments that UC would rather suppress, and to do so without prior permission.”

The 1851 Center and UC students endured four months of procedural tactics, harassing depositions, and frivolous daily letters by UC’s attorneys, after Ohio Attorney General Mike DeWine authorized $200,000 in state funds to the private law firm of Crabbe Brown, a campaign contributor of Mr. DeWine’s, to defend the clearly unconstitutional University of Cincinnati policies. The 1851 Center represents clients at no cost.

Multiple Ohio colleges and universities maintain speech restrictions similar in kind, although not as extensive, as those of the University of Cincinnati – – the Foundation for Individual Rights in Education recently named UC’s speech policies the worst in the nation.

The Court’s preliminary and permanent injunction orders can be viewed HERE.

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.

The Foundation for Individual Rights in Education (FIRE; thefire.org) is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities.

Young Americans for Liberty is a national student membership organization dedicated to recruiting, training, educating, and mobilizing students on the ideals of liberty and the Constitution.


August 26, 2012: The News Record: Court reverses UC free speech policy

August 23, 2012: Huffington Post: District Court: Campuses Can’t Quarantine Free Speech

August 23, 2012: Columbus Dispatch: Judge blocks university’s restrictions on speech

August 23, 2012: Cincinnati.com: Judge bans UC’s free speech policy

August 23, 2012: Daily Caller: U. of Cincinnati loses free speech lawsuit — is another Ohio college next?

August 23, 2012: Ohio Liberty Coalition: Federal court stops University of Cincinnati from restricting students’ free speech, president unexpectedly resigns

Ohio Candidates Can’t Hide Behind Anti-Tax-Pledge Statute

antipledgestatTo hold their elected officials accountable, a conglomerate of conservative, libertarian, and tea-party groups representing Ohio taxpayers have recently devised two pledges for state legislative candidates. These pledges are directed toward educating Ohio voters as to who can be counted on to limit onerous taxation and regulation.

Specifically, the taxpayers call upon legislative candidates to pledge that they (1) will not vote in a manner inconsistent with health care freedom; and (2) will note vote to impose a severance tax on fledgling oil and gas production in Ohio.

As citizens began to ask candidates to sign this pledge, something interesting – – beyond a policy debate – – happened: some Republican candidates began to balk at the idea of a pledge.

Rather than take a stance, some candidates have even responded that the request that they take the pledge is illegal, and that the person asking them to sign it could be fined out of house and home.

While it’s unclear how vastly this view is held amongst the Ohio Republican Caucus, or Democrats, for that matter, two things are clear: (1) it’s not a violation of a law to ask one’s candidate to sign the pledge; and (2) the statute is, itself, flagrantly unconstitutional.

Read the full analysis HERE.

Federal Court: University of Cincinnati Speech Restrictions on Students Unconstitutional

Students supporting “right to work” amendment cannot be arrested for discussing amendment and gathering signatures on campus

uofcinn1Cincinnati, OH – A federal court today ruled that the University of Cincinnati’s blanket prohibition on student political speech on campus violates the First Amendment. The ruling, made by Judge Black of the Cincinnati division of the Southern District of Ohio, paves the way for members of the student group Young Americans for Liberty (“YAL”) to advocate and collect signatures for the Ohio Workplace Freedom Amendment on campus.

The 1851 Center for Constitutional Law, which also drafted the Workplace Freedom Amendment, took up the students’ case and challenged UC’s policies after UC threatened to arrest student members of YAL if they attempted to gather signatures for the right-to-work cause on campus.

The lawsuit sought recognition that (1) the First Amendment applied to public university property, such as the University of Cincinnati; (2) signature-gathering for petition drives is a protected form of political speech; and (3) UC’s requirement that all UC students register up to 15 days ahead of time before engaging in any political speech on campus violates the First Amendment.

In his decision, Judge Black emphasized “It is simply unfathomable that a UC student needs to give the University advance notice of an intent to gather signatures for a ballot initiative. There is no danger to public order arising out of students walking around campus with clipboards seeking signatures.” The order, an across-the-board rebuke to UC’s policies, enjoins UC from:

  • “Requiring prior notification for the solicitation by students of signatures for petitions;”
  • “Prohibiting all solicitation by students of signatures for petitions in any designated public forum, including the Free Speech Area, the outdoor spaces described in the MainStreet Event Guide, and campus sidewalks;”
  • “Requiring that all student ‘demonstrations, picketing, or rallies’ occur only in the Free Speech Area;”
  • “Requiring 5 to 15 days prior notification for any and all student ‘demonstrations, picketing, or rallies’ without differentiations;”
  • “Imposing or enforcing any policy restricting student speech in any designated public forum, including the Free Speech Area, the outdoors spaces described in the MainStreet Event Guide, and campus sidewalks, that is not individually and narrowly tailored to serve a compelling university interest.

The Court further ordered UC to craft “more narrowly tailored regulations that regulate student expressive activities . . . only as are necessary to serve a compelling government interest.” “UC is an arm of the state that has chased and received state and federal tax dollars since its inception, all in the name of ‘public education,'” said Maurice Thompson, Executive Director of the 1851 Center.

“UC mistakenly seeks to advance its mission of public education by shielding its students from actual education on public policy issues that affect all Ohioans. Fortunately, the First Amendment allows us to protect the education of UC students from their educators; it further protects the right of students to calmly address facts and arguments that UC would rather suppress, and to do so without prior permission.”

The 1851 Center and UC students endured four months of procedural tactics, harassing depositions, and frivolous daily letters by UC’s attorneys, after Ohio Attorney General Mike DeWine authorized $200,000 in state funds to the private law firm of Crabbe Brown, a campaign contributor of Mr. DeWine’s, to defend the clearly unconstitutional University of Cincinnati policies. The 1851 Center represents clients at no cost.

Multiple Ohio colleges and universities maintain speech restrictions similar in kind, although not as extensive, as those of the University of Cincinnati – – the Foundation for Individual Rights in Education recently named UC’s speech policies the worst in the nation. However, these policies are suspect in light of the Court’s clear ruling.

 


June 12, 2012: Associated Press: Judge: Cincinnati school violated students’ rights

June 12, 2012: Cincinnati.com: Judge rejects UC protest policy; Ruling could set new standard for free speech on campus

June 12, 2012: F.I.R.E.: Federal Court: University of Cincinnati Free Speech Zone Violates First Amendment, ‘Cannot Stand’

June 13, 2012: Fox 19: Student political group wins injunction against U.C. speech restrictions

 

Read the Young Americans for Liberty v. UC, Complaint here.

Read the Young Americans for Liberty v. UC, Motion for Temporary Restraining Order here.

Read the Young Americans for Liberty v. UC, Motion for Partial Summary Judgment here.

Read the court’s decision here.

High Court Rebukes Attack on Cincinnati Charter Schools

CPS Deed Restrictions Against Charter and Private Schools Illegal, Cincinnati Charter Schools to Remain Open

Columbus – Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools is unlawful and must end, today ruled the Supreme Court of Ohio. This decision rebuffs CPS efforts to shut down numerous successful charters schools in Cincinnati, and is a considerable victory for charter and private school operators throughout the state.

1851 Center for Constitutional Law represented Theodore Roosevelt Community School, a Cincinnati charter school CPS had sued to shut down. Theodore Roosevelt School had purchased an unused school building located in the Fairmount neighborhood, where all CPS schools are in academic emergency, and 80 percent of families are of minority status, and live in poverty. The school opened in August of 2010, and currently serves nearly 300 students and employs 45 staff members.

CPS attempted to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The 1851 Center asserted such restrictions are void by Ohio’s public policy in favor of school choice, and cheat taxpayers of sales revenue from the buildings.

The Court’s decision, authored by Justice Lanzinger, acknowledged held “. . . the inclusion of a deed restriction preventing the use of property for school purposes in the contract for sale of an unused school building is unenforceable as against public policy.” The Court added, “[t]he restriction, on its face, prevents the free use of property for education purposes . . . Furthermore, the restriction is not neutral; it seeks to thwart competition by providing that the restriction applies to all buyers except CPS itself.”

“The Court’s decision upholds a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools’ right to exist,” said 1851 Center Executive Director Maurice Thompson.

“Deed restrictions like the one struck down in this case were devised simply to stop new charter and private schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a ‘gas station’ or ‘hotel’ that has a right to use hardball tactics against its competition. It seems to have forgotten that it’s a public school that exists to educate children, rather than amass revenue.”

The Court’s decision suggested promise for the 1851 Center’s overarching approach of using the doctrine “public policy” — the requirement that contract terms are subject to the public interest — to nullify government contract terms that attack school choice and reward special interests. While the Court acknowledged that the doctrine is narrow, it affirms 1851’s position that special scrutiny should apply to government contracts: “in this case, however, involving a contract between a private party and a political subdivision, there is a compelling reason to support application of the doctrine [of public policy].”

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools. The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, still pending before Judge Ruehlman.


June 6, 2012: Cincinnati.com: Ohio court: CPS unfair to charters


All briefs in the case can be viewed here.

Oral Arguments from the case can be viewed here.

Westerville Taxpayers Move to Repeal March Tax Increase

On May 7, 2012 taxpayers for Westerville Schools, with the representation of the 1851 Center,commenced circulation of an initiative petition to repeal the 6.71 mil tax increase narrowly approved in March after taxpayers defeated a similar measure at the November 2011 general election.

The Westerville effort marks the inaugural action of the 1851 Center in assisting taxpayers in using a previously obscure section of the Ohio Revised Code to lower their school district tax burdens, while forcing Ohio school districts to control spending and reign in labor costs rather than raising taxes.

“For years, many disingenuous Ohio school districts have chosen political gamesmanship over fiscal responsibility, placing tax hikes on the ballot at low-turnout elections where their own constituents’ voices are disproportionately heard,” said 1851 Center Executive Director Maurice Thompson.  “The goal of our tax rollback project is to help taxpayers across the state fight back against this gamesmanship by subjecting the tax increase to the general election ballot.”

The 51-49 percent vote for the tax increase came just four months after a 61-39 defeat at the general election.

“We are particularly pleased to begin this project in Westerville, the highest-taxed school district in central Ohio, and also the longtime home of our Governor,” added Thompson.  “We hope that the Governor and other state officials take note of these local tax abuses and reform the policy statewide.  Until that time, we will vigorously address this issue.”

The 1851 Center has called on state officials to reduce the number of times per year school districts may place tax increases on the ballot from three to one – – the general election held each November.  Ohioans’ local government tax burden is the sixth highest in the nation, according to the Ohio Department of Taxation.

Westerville taxpayers have proposed specific cuts that would alleviate the need for the tax hike, noting that administrators enjoy luxurious benefits packages, the average teacher’s salary of over $65,000 (trending towards over $80,000 by 2014-15 at current spending rates) is amongst the highest in the state and significantly higher than salaries of average Westerville residents, and the district pays the salary of Westerville Education Association union officials to do union work that does not benefit the district or the taxpayers.

For the measure to appear on the November ballot, volunteers will need to submit 3,911 valid signatures to the Franklin and Delaware County Boards of Elections by August 9, 2012.

The 1851 Center’s guide on how taxpayers can roll back tax levies can be found here.

More information on Westerville School District finances and the tax repeal effort is available at TaxpayersForWestervilleSchools.com.

 

 

 

 

May 7, 2012: The Columbus Dispatch: Westerville Group wants to Pare Levy

May 7, 2012: The Republic: Constitutional Law Center helps Taxpayers

May 7, 2012: The Star Beacon: Ohio Law Center helps Taxpayers

May 7, 2012: 10TV: Group Collecting Signatures to Repeal Levy

May 7, 2012: Brian Wilson Radio Show:

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May 8, 2012: Ohio Votes: Effort Underway to Repeal Levy

May 8, 2012: NBC4: TV news coverage video

May 9, 2012: This Week: Group Seeks to Roll Back Levy

May 10, 2012: Ohio Liberty Coalition: Taxpayers Attempting to Repeal Narrowly Passed Levy

May 10, 2012: 610 WTVN: Maurice Thompson’s radio interview with Joel Riley

May 10, 2012: Media Trackers: Taxpayer Advocates Seek to Rein in School Spending

Center Participates in Civil Rights Forum

On April 4, 2012, The 1851 Center participated in an event conducted by The Ohio Advisory Committee to the United States Commission on Civil Rights. The forum was aimed at investigating barriers to economic development in the state of Ohio and was conducted at Wilmington College.

Maurice Thompson, executive director of the Center, explained that economic freedom is the route to economic success. His comments addressed two areas that Ohioans should focus on to achieve more opportunity for all citizens:

(1) freeing workers from labor market restrictions such as licensing laws, wage controls, and union power-grabs; and

(2) freeing children from the public school monopoly and spreading educational choice and opportunity.

Read about the forum and view the list of speakers  here.

Read Mr. Thompson’s forum comments here.

1851 Center Efforts cited in Missouri News Horizon

On March 12, 2012, The Missouri News Horizon wrote about the economic damage caused by Kansas’s ban on smoking in bars. The article details the hardships placed on small business owners and cites the efforts of the 1851 Center. Read the full article here.

Is an Obamacare Exchange Legal in Ohio?

This 1851 Center analysis explains how the Ohio Health Care Freedom Amendment, Section 21 of Ohio’s Bill of Rights, forbids Ohio officials from imposing Obamacare health care exchanges on Ohioans. The document also explores reasons that such exchanges are an unwise policy choice