No, Ted Strickland, the Constitution Does Not Require a Supreme Court Confirmation Now

Senator Portman is Within His Right to Forestall

Columbus, OH – Former Ohio Governor and current Ohio Senate Candidate Ted Strickland spoke inaccurately yesterday when insisting that the United States Constitution requires an immediate vote on an Obama Administration Supreme Court nominee.

His repeated assertions that the Senate has a “constitutional obligation” to confirm an Obama Administration nominee came in response to Ohio Senator Rob Portman indicating that it would be “wiser” to wait until after the presidential election.

In reality, the Senate has no such constitutional “obligation,” and further, forestalling Supreme Court nominations until after the presidential election is lawful, non-threatening, and entirely plausible:

  • Under Article II, Section 2 of the United States Constitution, confirmation by the Senate requires both “advice” and“consent,” and the Senate maintains no obligation to “consent.” There is no requirement to hold a vote, and no requirement to vote in favor of confirmation. In fact, Congress sets the very sizeof the Supreme Court, and could elect to permanently maintain an eight justice court.
  • Only 15 percent of Supreme Court cases are decided by one vote, meaning the maintenance of an eight-Justice-court fails to present a significant threat, especially since it is already too late for a new justice to participate in this term’s decisions.
  • President Obama cannot lawfully appoint a Supreme Court Justice through the “recess appointment” process. The Supreme Court unanimously rejected such a move in the 2014 caseNLRB v. Noel Canning, finding that the President has no “recess appointment power” unless the Senate actually declares that it is in a recess (which it will not do here).

“Senator Portman is correct on this issue. There is simply no constitutional obligation to appoint an Obama nominee to the Supreme Court,” explained Maurice Thompson, Executive Director of the 1851 Center.

“And as to ‘wiseness,’ Ohioans should not forget how uniquely unqualified Mr. Strickland is to speak to the issue of democracy and the politicization of the courts: after losing Ohio’s gubernatorial election in November of 2010, he hastily disgraced the Ohio Supreme Court by appointing his running mate, Yvette McGee Brown, to the high court at the eleventh hour of his governorship (in January of 2011). Brown was summarily swept from office by Ohio voters at the next general election. Mr. Strickland’s other Supreme Court appointment, political crony Eric Brown, was removed from office just seven months after appointment.”

Of note to Ohioans, Strickland also mentioned his view that former Ohio Attorney General Richard Cordray should be appointed to the high court. However, much like the current occupier of that office, Cordray spent his entire tenure in Ohio attacking state and local businesses, rather than defending the state or federal constitutions or limiting government in any manner.

Legal Centers to U.S. Supreme Court: Declare Ohio Precious Metals Dealers Licensing Scheme Unconstitutional

Act regulates business in response to constitutionally-protected advertising, and prohibits legitimate purchases of gold and silver, but Sixth Circuit bungled ruling

libertycoinsColumbus, OH – The 1851 Center for Constitutional Law and the Pacific Legal Foundation today petitioned the United States Supreme Court to stop enforcement of the “Ohio Precious Metals Dealers Act” against Ohio businesses because the Act imposes onerous regulations in response to advertising protected by the First Amendment.

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 in 2011 began 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.

In late 2012, Judge Michael Watson of the Columbus division of the Southern District of Ohio authored a 28-page decision enjoining the Act, explaining that “the Act only prohibits the unlicensed buying of precious metals when commercial speech is involved,” and emphasizing that “a broad injunction completely prohibiting enforcement of the licensing provision is warranted.”

The Court added that the Department of Commerce’s aggressive reading of the regulations was “nonsensical,” and that Ohio coin dealers and others “are unable to actually purchase precious metals without facing prosecution due to Defendants’ incorrect interpretation of the Act.”

However, a Sixth Circuit Court of Appeals panel of Democrat-appointees cursorily dismissed the view a “licensing statute” could be unconstitutional on any grounds, even if it in effect punishes and is triggered by speech protected by the United States Constitution.

The Circuit brushed aside the First Amendment implications of a regulation triggered by speech instead of conduct, on the grounds that the “PMDA is, first and foremost, a licensing statute,” further holding that states may always promulgate “economic regulations,” so long as the legislative purpose behind the regulations is to regulate economic activity, even if the plain language and practical effect of the enacted statute is to single out only those who speak.

The novel legal issue presented by the case centers around how Ohio has chosen to regulate precious metal dealers – – by defining a precious metal dealer as only those who buy gold or silver and then broadcast to the public that they do so.

While the Act provides “no person shall act as a precious metals dealer without first having obtained a license,” the Act define a “Precious metals dealer” to be “a person who is engaged in the business of purchasing articles made of or containing . . . precious metals or jewels of any description if, in any manner, including any form of advertisement or solicitation of customers, the person holds himself, herself, or itself out to the public as willing to purchase such articles.

Analyzing this language, the District Court held the Department of Commerce failed to show “how holding one’s self out as willing to purchase precious metals contributed to the evils the State seeks to prevent. Moreover, Defendants have not shown how requiring a license only for purchasers of precious metals who engage in commercial speech directly and materially advance those interests.”

But the Sixth Circuit panel on the case disagreed.

Liberty Coins’ Petition for Writ of Certiorari argues that the High Court should now take up the case because:

  • This case squarely presents the question of whether an occupational licensing requirement that onlyapplies when a person communicates a message to the public is subject to little or no review – as the court below held – or to the higher First Amendment scrutiny that applies to other laws that impose burdens based on speech.
  • The Sixth Circuit’s decision conflicts with many prior Supreme Court and Circuit Court decisions by establishing a new rule that when the “primary purpose” of a law is to “regulate the conduct” of a business, courts should review that law only through low scrutiny, even though the law’s burdens only apply if a person speaks.

The Petition 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.”

“Speech alone is the trigger for Ohio’s licensing requirement,” explained Pacific Legal Foundation Principal Attorney Timothy Sandefur. “And that makes this regulatory scheme unconstitutional. Without a compelling interest that meets the highest standard of judicial scrutiny, government cannot restrict speech. It certainly can’t impose a licensing requirement on speech. And it can’t impose indirect limits, as the Ohio law does, by restricting speech in the guise of regulating business.”

The state’s heightened enforcement tactics, which effectively put many coin dealers out of business in response to political contributions from competing and better-organized pawnbrokers, come at a time of when 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’ Petition for Writ of Certiorari HERE.


October 3, 2014: Morning Journal via Associated Press: Legal centers seek stop to Ohio metals dealers law

November 3, 2013: Columbus Dispatch: Gold shops await rule on fines, licensing

October 12, 2013: Coin shop challenges Ohio law as free speech ban

December 7, 2012: Bloomberg Businessweek: Ohio gold, silver dealers’ law blocked by judge

December 7, 2012: Ohio Watchdog: OH: Judge blocks catch-22 in state law that threatened entire industry

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

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





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.

Legal Centers Move to Protect Rights of University of Cincinnati Students to Petition for Workplace Freedom on Campus

On February 22, 2012, The 1851 Center filed suit in federal court on behalf of UC students prohibited from gathering signatures and simultaneously discussing the Ohio Workplace Freedom Amendment with their fellow students.

The legal action, which includes a demand for an immediate injunction against UC’s policies prohibiting non-disruptive political speech, was filed on behalf of the student group Young Americans for Liberty (“YAL”) and its President Christopher Morbitzer, with support from the Foundation for Individual Rights in Education (“FIRE”).

The Supreme Court has repeatedly confirmed that First Amendment applies to public university property and also protects signature-gathering for petition drives as a form of political speech.  Nevertheless, UC’s policies prohibit political speech by students everywhere other than an 80 by 120 foot patch of grass near the center of campus, and even then, requires students to request permission and wait for up to 14 days prior to engaging their fellow students in discussion of important public policy matters, such as the Workplace Freedom Amendment.

The lawsuit seeks to restore the right of UC students to engage in political speech, and petitioning in particular, beyond the limited confines of the free speech zone, and without first having to ask permission and wait 14 days before doing so.

“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.”




March 28, 2012: The Daily Caller: The Top 12 Worst Colleges for Free Speech

April 5, 2012: The News Record: Free Speech Under Fire

April 20, 2012: Fox Business Network: College Campuses Limiting Free Speech





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.

Ohio Voters Approve Health Care Freedom Amendment

On Nov. 8, 2011, Ohio voters voiced their strong opposition to overbearing and invasive health care mandates by passing the Ohio Health Care Freedom Amendment with 66% of the vote.  Drafted by the 1851 Center for Constitutional Law, the amendment preserves the freedom of Ohioans to choose their health care and health care coverage.


Click here for answers to Frequently Asked Questions about this measure.

Manna Storehouse appeals to the Ohio Supreme Court

On July 21, 2011, Manna Storehouse and the Stowers family, notoriously raided by a Health and Agriculture Department-led SWAT team for not maintaining a “retail food establishment” in operating their small, private-membership organic food cooperative in LaGrange, Ohio, moved the Supreme Court to protect their rights.

The Stowers argue that the state’s imposition on their property rights and right to earn a living require the utmost scrutiny, and must be protected. They further argue that requiring government permission and licensure to operate their safe private cooperative converts state government to one of unlimited powers, transgressing the limits of state power, while violating their rights.

1851 Center Director Maurice Thompson noted “this case represents a paradigmatic struggle over the role of government in our lives: may government require an onerous-to-acquire permission slip to engage in the most of basic human activities, merely by waiving the banner of ‘public health’ (which can justify anything), or do property rights, and the right to use one’s property to earn a living in particular, still matter?”

Case Story

The  1851 Center for Constitutional Law took legal action on December 19th, 2008 against the Ohio Department of Agriculture (ODA) and the Lorain County Health Department for violating the constitutional rights of John and Jacqueline Stowers of LaGrange, Ohio. The Stowers operate an organic food cooperative called Manna Storehouse. ODA and Lorain County Health Department agents forcefully raided their home and unlawfully seized the family’s personal food supply, cell phones and personal computers. The legal center seeks to halt future similar raids. The complaint was filed in Lorain County Court of Common Pleas.

“The use of these police state tactics on a peaceful family is simply unacceptable,” said 1851 Center Executive Director Maurice Thompson. “Officers rushed into the Stowers’ home with guns drawn and held the family – including ten young children – captive for six hours. This outrageous case of bureaucratic overreach must be addressed.”

The 1851 Center argues the right to buy food directly from local farmers; distribute locally-grown food to neighbors; and pool resources to purchase food in bulk are rights that do not require a license. In addition, the right of peaceful citizens to be free from paramilitary police raids, searches and seizures is guaranteed under the Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio Constitution.

“The Stowers’ constitutional rights were violated over grass-fed cattle, pastured chickens and pesticide-free produce,”  Thompson said. “Ohioans do not need a government permission slip to run a family farm and co-op, and should not be subjected to raids when they do not have one. This legal action will ensure the ODA understands and respects Ohioans’ rights.”

On the morning of December 1, 2008, law enforcement officers forcefully entered the Stowers’ residence, without first announcing they were police or stating the purpose of the visit. With guns drawn, officers swiftly and immediately moved to the upstairs of the home, finding ten children in the middle of a home-schooling lesson. Officers then moved Jacqueline Stowers and her children to their living room where they were held for more than six hours.

Such are raids are beyond the scope of the purely administrative authority delegated to ODA and county health departments. In enforcing licensure laws, these agencies are only permitted to contract for routine enforcement services. Forceful raids and sweeping searches and seizures are not routine, and exceed the authority granted to ODA and county health departments.

The 1851 Center sought an injunction against similar future raids, and a declaration that such licensure laws are unconstitutional as applied the Stowers and individuals like them.

There has never been a complaint filed against Manna Storehouse or the Stowers related to the quality or healthfulness of the food distributed through the co-op. The 1851 Center will defend the Stowers from any criminal charges related to the raid.

1851 Center Files Action to Expose Government Lobbying Records

Organizations Comprised of Local Governments Refuse to Disclose Lobbying Activity on Estate Tax and Government Spending

Columbus–The 1851 Center for Constitutional Law, on behalf of Relators Dayton Tea Party and Robert Scott, yesterday filed in the Ohio Supreme Court a Public Records Complaint demanding Ohio Municipal League (OML) and Ohio Township Association (OTA) lobbying records. Both the OML and OTA have used public funds to lobby against Ohio Estate Tax repeal and other tax cuts, property rights and the right to bear arms, and in favor of inflated state spending. [Read more…]

Update: Estate Tax Repeal Signed into Law, Expires January 1, 2013

The legislature has passed a state budget that includes the repeal of Ohio’s Estate Tax.  Special thanks to the team at for their leadership in accomplishing a feat that no liberty group before them had accomplished:  the elimination of a statewide tax.  In drafting the initiative and representing the effort, the 1851 Center was simply the professional scaffolding around this inspiring all-volunteer effort. [Read more…]

High Court Reviewing Smoking Ban Constitutionality

On April 6, 2011, The Supreme Court of Ohio agreed to become the first state supreme court in the nation to determine whether a statewide smoking ban violates bar owners’ property rights. The Court also agreed to review whether the Ohio Department of Health has consistently exceeded its authority in fining business owners under the ban. [Read more…]