The Constitutionality of Stripping Elected Officials of Their Power

Update: On September 19, 2023, the Democratic members of the Ohio Board of Education filed a lawsuit against legislation described in this piece, arguing that the act violated the Ohio Constitution’s single-subject requirement for legislation; that the legislature failed to consider the act on three separate days, as required by the Constitution; and that the act infringed on the Board’s constitutional powers. On September 21, 2023, a judge on the Franklin County Court of Common Pleas issued a temporary restraining order against the act’s enforcement.

Ohio Democrats performed poorly in the 2022 midterm elections — Democratic Congressman Tim Ryan lost to Republican J.D. Vance in the U.S. Senate race, Democratic candidates lost every other statewide race by double-digit margins, and Republicans expanded their legislative majorities by using maps deemed to be unconstitutional gerrymanders. However, there was one bright spot for Democrats: left-leaning candidates won a majority of elected seats on the state board of education. 

Ohio voters have long played a role in picking the administrators of the public education system in the state. From 1853 to 1913, Ohioans elected a state school commissioner, but the office was abolished by a 1912 constitutional amendment. In 1953, another constitutional amendment created the state board of education. As in a handful of other states, the board is elected in officially nonpartisan elections from districts. Originally, the board was elected from the state’s congressional districts, but in 1992, the 21-member board was cut down to 19 members — 11 of which are elected from combinations of state senate districts and 8 of which are appointed by the governor.

Under the Ohio Constitution, the board of education appoints the superintendent of public instruction to serve as the Ohio Department of Education, and the legislature has the power to “prescribe[] by law” the “respective powers and duties of the board and of the superintendent.”

Almost immediately after the 2022 election, Republicans in the Ohio legislature moved to slash the powers of both the board of education and the superintendent. The bill’s prospects were originally unclear, but over the summer, the reform was packaged with the biennial state budget bill, which was approved by Gov. Mike DeWine (R) in July.

Under the new law, control of the state’s public school systems is placed in the renamed Department of Education and Workforce, and the superintendent is removed as the head of the department and replaced by a director appointed by the governor. The board of education retains some limited powers, such as supervising teacher licensure and discipline, but the superintendent is relegated to merely serving as the secretary of the board.

Efforts by legislatures to strip the powers of executive officers in state government have increased in recent years — especially when the legislature and the officer in question are of different political parties. After Democrat Roy Cooper was elected governor of North Carolina in 2016, the Republican-dominated legislature eliminated many of his powers. Likewise, victories by Democratic candidates in statewide elections in Michigan and Wisconsin in 2018 were quickly followed by efforts to limit the newly elected officials’ powers. And in Kentucky, Democratic Gov. Andy Beshear’s powers have slowly been whittled away by Republicans in the state legislature. In some (but not all) cases, state courts have stepped in to reverse these moves.

The Ohio legislature’s move to strip the board of education and the superintendent of public instruction of almost all their powers, however, is substantively different. Though the legislature has the power to “prescribe[] by law” the board’s and superintendent’s respective powers, there is a robust body of case law to suggest that eliminating virtually all their powers might violate the state constitution.

Two of the most recent examples of this jurisprudence come from Minnesota and Wyoming. In 1985, the Minnesota legislature transferred almost all the elected state treasurer’s powers to the gubernatorially appointed commissioner of finance. Likewise, in 2013, the Wyoming legislature transferred a similar proportion of the elected superintendent of public instruction’s duties to the director of education, a newly created office in the Wyoming Department of Education. Neither move was an effort by a legislature of one party to stymy an elected official of another — instead, the statutory changes stemmed from intraparty conflicts between the state legislature and idiosyncratic, controversial officeholders.

In both cases, the legislatures seemingly had the authority to transfer the officers’ powers under their respective state constitutions. The Minnesota Constitution provided in Article V, Section 4, that “the duties . . . of the executive officers shall be prescribed by law,” and the Wyoming Constitution provided in Article VII, Section 14, that the “powers and duties [of the state superintendent of public instruction] shall be prescribed by law.”

Nonetheless, in both cases, the state supreme courts struck down the changes. In State ex rel. Mattson v. Kiedrowski, the Minnesota Supreme Court observed that the “shall be prescribed by law” language was common in state constitutions across the country and that “appellate courts in these jurisdictions have consistently held that the prescribed-by-law provision does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.” Because “functions relating to the receipt, care and disbursement of state monies define the state treasurer position,” the legislature was without power to “abolish[] all of the independent functions inherent in” the office and transfer the duties elsewhere, and it struck down the law. (In 1998, voters approved a constitutional amendment eliminating the state treasurer as a constitutional office.)

The Wyoming Supreme Court reached a similar conclusion in Powers v. State. Citing Mattson and similar cases, it concluded that “the phrase ‘as prescribed by law’ does not permit the legislature to abolish or transfer, either directly or indirectly, the inherent powers of a constitutionally created office.” It noted that, although “the legislature has the power to alter the powers and duties of the Superintendent,” it does not have “unrestricted power to eliminate or transfer powers of the duties of Superintendent.”

Moreover, the Wyoming Constitution granted the superintendent a specific responsibility: the “general supervision of the public schools.” Accordingly, the court evaluated the superintendent’s role after the 2013 statutory change and concluded that she had been “relegate[d] . . . to the role of general observer with limited and discrete powers and duties.” Instead, the director of education succeeded to virtually all the superintendent’s responsibilities to supervise the public school system. Wyoming’s high court, too, found the law unconstitutional.

In that light, there is a plausible argument that the Ohio legislature’s change to the board of education’s and superintendent’s duties would violate the Ohio Constitution. While the Ohio Constitution does not provide many express powers to either the board or the superintendent, its “prescribed by law” language is textually identical to similar provisions in state constitutions in Minnesota and Wyoming, which has almost uniformly been interpreted to limit the state legislature’s powers to eliminate almost all of an officer’s duties. Comparing and contrasting the board’s and superintendent’s powers before and after this year’s statutory changes demonstrates that, like the Wyoming superintendent of public instruction, they are likely relegated to a “role of general observer with limited and discrete powers and duties.”

Whether such a challenge will be brought against the constitutionality of the law remains to be seen — as well as whether the conservative majority on the Ohio Supreme Court would entertain such a challenge. But there is a strong textual argument that the legislature, in eliminating almost all of the board’s and superintendent’s duties, has overstepped its role.

Quinn Yeargain is an assistant professor at Widener University Commonwealth Law School.