Be careful what you wish for …. Later today, Donald Trump will sign a long-expected executive order to strengthen protections on religious freedom, but it may not be as beneficial as its supporters might think. The EO will target both the HHS contraception mandate and the Johnson Amendment, two big issues for religious liberty advocates, but the constraints of executive orders may make this only temporary — and possibly worse:
— CBS News (@CBSNews) May 4, 2017
How can it get worse? Let’s take a look at the expected impact of the change in enforcement of the Johnson amendment, a part of the tax code that forbids 501(c)(3) organizations (including churches) to endorse and contribute to candidates and political parties. Rather than simply refusing to enforce it at all, CBS News hears that the EO makes the decision more arbitrary — and leaves the decisions in the hands of the IRS:
President Trump will sign an executive order Thursday that gives the IRS discretion on enforcing the law prohibiting tax-exempt nonprofit groups from participating in any candidate’s political campaign, and allows the administration to give regulatory relief as it sees fit from controversial Obamacare requirements.
According to a senior White House official on a conference call Wednesday night, the executive order allows the IRS — when IRS officials choose — not to enforce the Johnson Amendment, which prohibits nonprofits such as churches and charities from “directly or indirectly” engaging in a political campaign. But the order doesn’t provide blanket relief for tax-exempt religious organizations, opening the possibility that the IRS could pick and choose whom to penalize. The official was clear that the order does not change current law, and any activity that is illegal now will still be illegal after Mr. Trump signs the executive order.
In February, Mr. Trump promised to “destroy” the Johnson Amendment. This executive order falls short of that, but the official didn’t indicate whether Mr. Trump would work with Congress or attempt another route of further addressing the 60-year-old law in the future.
Presidents can’t “destroy” laws with EOs; it takes an act of Congress to repeal statutes, including parts of the tax code such as the Johnson amendment. Republicans are reportedly working on repealing the Johnson amendment with the White House as part of its tax reform package, which is also a bad idea for other reasons. This, however, is the worst of both worlds. A flat-out repeal would eventually have the IRS forced into the position of making arbitrary findings about what qualifies as a church, with its ability to keep donors secret, and what doesn’t. This makes the very enforcement of the Johnson amendment arbitrary, which means that even legitimate churches will have no idea whether the IRS will crack down on them for partisan political engagement.
Which churches will have to worry about the IRS in a Trump administration? Which churches will have to worry about the IRS in a future Democratic administration? This arbitrariness does not provide stronger religious liberty — it takes us further from the rule of law and closer to the rule of executive whim. Either stop enforcing it entirely, or do nothing until Congress acts, and the latter is the choice that best supports the rule of law.
The HHS piece is also something less than optimal, too, although it’s far more benign. HHS already was using arbitrary methods to make determinations about which organizations were religious enough for an exemption from the contraception mandate; all this EO does is tilt the arbitrariness a little more in favor of religious organizations, such as the Little Sisters of the Poor. The best approach to this problem is still the elimination of the mandate entirely, a process which should have already started after Tom Price’s confirmation as HHS Secretary. So far no action has been seen, and the Department of Justice is still pursuing lawsuits defending the mandate. At this point, the issue should have already been mooted, or nearly so.
Finally, the EO leaves in place job protections for LGBT employees of federal contractors, which apparently delayed this EO for several weeks. That’s no surprise, as Trump has made it clear that he supports the LGBT community, even if they can’t stand him. These protections only had minimal impact on genuine religious-liberty concerns anyway. It’s a smart choice, although don’t expect the White House to get too much credit for it from the media.
Update: Will anyone be happy with it?
This is completely watered down since original drafting. Items 1 & 2 are mostly symbolic, and item 3 is far narrower than what Pence wanted. https://t.co/1gtSkjtjum
— Tim Alberta (@TimAlberta) May 4, 2017
Update: Here’s another really good question:
Is there a coherent arg for why exercise of prosecutorial discretion in DAPA was unconstitutional but EO nullifying Johnson Amend is ok?
— Joshua Block (@JoshACLU) May 4, 2017
Not really, no.
Update: Perhaps this scene from one of my favorite films of all time explains the dangers inherent here best: