Thursday, May 4, 2017

Is There Even Enough in Trump's Religion-Protection EO to Sue Over?

President Trump issued his long-awaited and much promoted executive order on protecting religious liberties today. Most say that when the rubber hits the road, the EO does, well, nothing at all, except maybe telegraph the President's feelings about the importance of protecting religious liberties. Even the ACLU, earlier geared up to sue, backed down when they read the actual language.

So: Is the ACLU right? Is there even enough in Trump's EO to sue over?

Probably not. Consider it, section by section:

Section 1 states that "[i]t shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom" and that "[t]he executive branch will honor and enforce those protections." At most this language states the administration's enforcement priorities for law that already exists.

Section 2 takes aim at the Johnson Amendment--that portion of IRC 501(c)(3) that bans nonprofits from directly or indirectly engaging in electioneering on behalf of, or in opposition to, any candidate for elective public office. (Nonprofits can engage in ordinary political speech; they do it all time. They just can't endorse candidates.) But the language of Section 2 does no such thing. It says, "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury." (Emphasis added.) In other words, the plain terms of Section 2 don't take down the Johnson Amendment (even if they could); instead, they comply with it.

Section 3 directs the relevant secretaries to "consider issuing amended regulations" to overturn the contraception mandate regs. Folks may agree or disagree over the wisdom of the contraception mandate, but there's nothing objectionable with a president asking an agency to "consider issuing amended regulations." And even if there were, the "consider" means that anyone challenging this portion of the EO could face an uphill battle to show standing.

The balance of the EO is just dressing.

In other words, the EO really doesn't do anything that one might sue over--at least yet. Even Section 2--the portion perhaps most likely to be challenged on Establishment Clause, Equal Protection, free speech, and "take care" grounds (and in fact challenged on exactly those grounds in a suit filed by the Freedom From Religion Foundation)--actually says that the administration will comply with the Johnson Amendment.

The Freedom From Religion Foundation wisely quotes President Trump throughout its complaint, arguing that the EO must be interpreted in light of his public statements (and thus drawing on this same (successful) strategy in other cases challenging the travel ban and the sanctuary cities EO).

But unlike those other EOs, the plain text of this one seems to do nothing--at least not yet.

http://lawprofessors.typepad.com/conlaw/2017/05/is-there-even-enough-in-trumps-religion-protection-eo-to-sue-over.html

Cases and Case Materials, Establishment Clause, Executive Authority, News, Religion | Permalink

Comments

This EO is more one of Cass Sunstein's "nudges". It signals a interpretative direction to bureaucrats to back off on some of the decisions they might otherwise make.

Posted by: Jon Roland | May 5, 2017 6:32:31 PM

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