Freedom must be written into law, not wish-cast through commands that a later president can reverse.
Fresh on the heels of a budget deal that fully funds Planned Parenthood, Donald Trump has signed a religious-liberty executive order that — if reports are correct — is constitutionally dubious, dangerously misleading, and ultimately harmful to the very cause that it purports to protect. In fact, he should tear it up, not start over, and do the actual real statutory and regulatory work that truly protects religious liberty.
According to the New York Times and others privy to the administration’s preview, the order has three main components: 1) a promise to “protect and vigorously promote religious liberty,” 2) a directive to “ease restrictions on political activity by churches and charities,” and 3) an order to “federal agencies to exempt some religious organizations from Affordable Care Act requirements that provide employees with health coverage for contraception.” Those directives are respectively 1) meaningless, 2) dangerous, and 3) meaningless.
(Update: the text of Trumps’s executive order is available, and it reflects the content described by the Times.)
Let’s dispense first with the vague and sweeping promise to “protect and vigorously promote religious liberty.” That’s a nice sentiment, but it’s proven only by actions, and if the order itself is considered one of those actions, then it’s self-refuting. The order doesn’t do anything “vigorously,” and it doesn’t “protect” anything at all.
Next — and this is important to understand — an executive order cannot repeal a statute, and legal restrictions on political activity by churches are statutory. They’re part of the so-called Johnson Amendment, a rarely enforced provision of the tax code that prohibits 501(c)(3) tax-exempt organizations from, as the IRS explains, “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”
The Johnson Amendment is constitutionally problematic (to put it mildly). Lyndon Johnson rammed it through Congress for the noble purpose of stopping nonprofits from supporting his primary opponent and preserving his own political hide, and it’s been on the books ever since. Though it’s rarely enforced, it hangs like the Sword of Damocles over the heads not just of churches but of every 501(c)(3) in the United States. First Amendment lawyers are desperate to find a good test case to challenge it, but the IRS’s general lack of enforcement means that the right case is elusive. So the amendment remains.
Source: National Review | David French