What just happened?
On Thursday, May 4, President Trump released his long-awaited executive order on “Promoting Free Speech and Religious Liberty.”
What is an executive order, and what does it do?
An executive order is an official document, signed by the president, used to manage the federal government. Assuming they are limited to the scope of the executive action allowed by a president, executive orders have the power of federal law. While a president cannot directly create a new law or sign an executive order that violates existing law, he or she can use an executive order to specify how laws will be carried out or direct how a federal agency will carry out a task.
The president is free to revoke, modify, or supersede his own orders or those issued by a predecessor. The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer also established the framework for determining whether an executive order is Constitutional.
What does this executive order do?
This order provides guidance for the executive branch in “formulating and implementing policies with implications for the religious liberty of persons and organizations in America.” It covers the following four areas:
1. Policy. According to the order, “It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.”
2. Respecting Religious and Political Speech. (More on this below.)
3. Conscience Protections with Respect to Preventive-Care Mandate. (More on this below.)
4. Religious Liberty Guidance. According to the order, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”
How does the order define “Respecting Religious and Political Speech”?
The order states, “All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.” It explicitly states the Treasury Department (which is in charge of the IRS) shall not take adverse action (e.g., deny tax-exempt status, disallow tax deductions) 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 . . .
What this means is that the Trump administration will not enforce the so-called “Johnson amendment.” (More on this below.) However, while this means that pastors and churches may not be penalized for endorsing candidates while this order is in effect, it does not protect against future prosecution—even for past actions. As David French explains, “Even if the Trump administration chooses not to enforce the law, a later administration can tear up Trump’s order and begin vigorous enforcement based on actions undertaken during the Trump administration.”
What is the Johnson amendment?
In 1954, Senator Lyndon Johnson was running for re-election in his home state of Texas and faced a primary challenge from a millionaire rancher-oilman. A non-profit conservative political group published material recommending voting for Johnson’s challenger. To get back at this group, Johnson subsequently introduced an amendment to Section 501(c)(3) that would prohibit tax-exempt organizations from attempting to influence political campaigns. The present ban is codified in Section 501(c)(3) of the Internal Revenue Code.
According to the Internal Revenue Service,
Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.
Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.
On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.
As Religion Link notes, this law has been applied only rarely, including against a Catholic organization, at a New York church that took out a political advertisement in a newspaper, and at an Episcopal church in California where the rector preached about George W. Bush, John Kerry, and the Vietnam War.
How does the order address “Conscience Protections with Respect to Preventive-Care Mandate”?
The order says the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services “shall consider issuing amended regulations” to address conscience-based objections to the preventive-care mandate promulgated under the Affordable Health Care Act (a.k.a., Obamacare).
However, until the agency heads takes such steps to overturn or replace them, the regulations that have been objected to on the basis of conscience will remain in force.
Does the order provide for other types of conscience protections or protect other forms of religious liberty?
The scope of the order is so limited that even opposition groups are shrugging at the news. For example, earlier today the ACLU said they would be suing the Trump administration over the order. But after they read the text of the order they announced on Twitter: “We thought we'd have to sue Trump today. But it turned out the order signing was an elaborate photo-op with no discernible policy outcome.”
To fully protect the religious liberties of all Americans, Congress will need to pass additional legislation, such as the Conscience Protection Act and the First Amendment Defense Act.