My friends at the Freedom From Religion Foundation have already filed a federal lawsuit challenging Trump’s executive order pretending to support “religious freedom” by ostensibly, but not really, loosening the restrictions on politicking known as the Johnson Amendment.
While the executive order doesn’t actually change much of anything, the FFRF is right to focus on one aspect of the order: It applies only to churches. But the federal restrictions on endorsing candidates apply to all 501(c)(3) non-profit organizations, churches and secular groups alike. From their press release:
Among its several abuses, Trump’s order and statements signal to the Internal Revenue Service that it should not enforce the electioneering restrictions of the tax code against churches and religious organizations, while permitting these restrictions to be enforced against secular nonprofits. FFRF asserts the president has no constitutional authority to selectively veto a legitimate statute that Congress passed and a president signed into law more than 50 years ago.
This part of the law is known as the Johnson Amendment. Under the amendment, all organizations that are recognized as exempt from federal income tax under §501(c)(3) of the Tax Code are subject to the prohibition against political campaign intervention.
The Freedom From Religion Foundation, a 501(c)(3) nonprofit, contends that Trump is violating its equal protection rights and favoring church groups over secular groups, in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. Trump has directed the IRS to do something for which they both lack any enumerated or implied power: to selectively enforce a legitimate statute based solely on religion.
Exactly right, which is why I said the day before the order was signed and made public that we should keep a look out for the language. If it applies only to churches and religious organizations, it would clearly violate the 14th Amendment and the Establishment Clause.
But as I also said previously, this order doesn’t actually change how the IRS handles the issue, it only pretends to do so. Marty Lederman, who served in the Office of Legal Counsel, the DOJ department that would have told Trump he didn’t have the authority to issue this order if he’d bothered to ask them (that’s the sole reason they exist, to advise the president on what his legitimate authority is under the Constitution), explains why:
Not only doesn’t the Johnson Amendment treat churches worse than other 501(c)(3)s—as it happens, the IRS has long treated the political speech of churches more favorably than that of nonreligious 501(c)(3)s. Since 2008, the Alliance Defending Freedom has organized what it calls “Pulpit Freedom Sunday,” an exercise of mass civil disobedience in which hundreds or thousands of clergy nationwide all deliberately violate the law, on a designated day, by engaging in partisan political activity from the pulpit (e.g, urging their congregations to vote for or against certain candidates), in contravention of the condition of their churches’ preferred tax status. The point of this exercise is to prompt the IRS to move to withdraw some churches’ 501(c)(3) status, in order to create some sort of national scandal. The IRS, however, has not taken the bait—as Emma Green reports in this excellent article for The Atlantic, the agency has declined even to audit most, or all, of the churches in question, let alone to withdraw any church’s 501(c)(3) status.
President Trump’s Executive Order purports to direct the IRS to be more lenient than that (if such a thing is even possible)—to exercise “maximum enforcement discretion to alleviate the burden of the Johnson Amendment” on churches.
And he agrees with the FFRF that, to whatever extent it even pretends to do so, it’s unconstitutional:
It might be politically shrewd for the IRS to ignore the churches’ law-breaking. Even so, if the agency affords preferential treatment to churches that deliberately flout the law—something that today’s E.O. will, if anything, only exacerbate—it almost certainly would be unconstitutional. I’ll leave it to Zach Price and others to discuss whether the IRS is simply violating its statutory mandate (and whether the E.O. thus violates the President’s duty to take care the law is faithfully executed). Even if such disparate treatment is consistent with the enforcement discretion Congress has delegated to the IRS, however, giving churches a preference vis-à-vis other 501(c)(3)’s likely violates the Establishment Clause—not least because it does not alleviate a significant or “exceptional” burden on churches’ religious exercise—and such a speaker-based preference to engage in political advocacy is an even clearer violation of the Free Speech Clause, see, e.g., Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 652-653 (1981); cf. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 25 (1989) (White, J., concurring in the judgment).
Up to this point, Trump has issued two primary kinds of executive orders: meaningless and symbolic ones that do nothing, and substantive ones that are unconstitutional. This time he managed to do both at the same time. The ACLU, on the other hand, announced that they are not going to bother filing a suit over it:
“Today’s executive order signing was an elaborate photo-op with no discernible policy outcome. After careful review of the order’s text we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process. The order portends but does not yet do harm to the provision of reproductive health services.
“President Trump’s prior assertion that he wished to ‘totally destroy’ the Johnson Amendment with this order has proven to be a textbook case of ‘fake news.’