In response to the ongoing federal assault upon Americans’ religious liberties, President Donald Trump has responded with an executive order that will entrust these liberties to the discretion of IRS agents.
Maybe this one needs a bit more thought.
First, the president purports to, as he put it, “get rid of and totally destroy the Johnson Amendment,” a law that forbids tax-exempt religious organizations to endorse or oppose candidates from the pulpit. While religious organizations already enjoy the right to advocate and agitate in the political arena, the Johnson Amendment represents a free-speech restriction that is almost certainly unconstitutional, at odds with a tradition of First Amendment jurisprudence barring the linkage of government benefits to the restriction of unrelated constitutional rights. The problem, which President Trump does not quite seem to comprehend, is that an executive order cannot simply overturn a piece of legislation. As Gregory S. Baylor of Alliance Defending Freedom puts it, “A legislative problem like the Johnson Amendment demands a legislative solution like the Free Speech Fairness Act.” But President Trump has thus far shown very little appetite for taking a specific legislative agenda to Congress — and to the public — and fighting for it.
Instead, President Trump will imitate President Barack Obama’s approach to illegal immigrants and simply order that “prosecutorial discretion” be expanded and codified in such a way as to categorically forbid enforcing federal law. Given the recent history of the IRS and its willful harassment of conservative groups, we are skeptical that this will prove a fruitful approach. We are still more skeptical that such an approach would last five minutes should another Democrat end up in the White House, which, alas, is bound to happen some day, and which would leave churches vulnerable to future sanction for deeds done under the assumption that the prosecutors would be permanently sidelined. We are entirely unconvinced that this is a substitute for changing the law.
It does purport to provide “regulatory relief” to businesses with owners who object to the Affordable Care Act’s contraceptive mandate, a regulation that remains in full force. With a Supreme Court decision on its side (in Hobby Lobby), the administration surely could craft something more specific and more meaningful than a vague promise of “regulatory relief,” whatever that is intended to mean. Again, this falls short of what actually needs doing, which begins with the full repeal of the regulation in question, something that is within the power of the executive. Those who wish to purchase contraceptive coverage in their health-insurance plans would of course remain free to do so, but they would not be compelled to do so. We are not so naïve as to believe that this measure, which ought to be uncontroversial, would in fact be uncontroversial. But President Trump advertises himself as a man who has the mettle to make hard and difficult choices. Here’s a chance.
Because the Obama administration acted so often through executive order, there is much opportunity for the Trump administration to do the same in reversing its predecessor. But that is only a small part of what needs doing. The president owes it to his voters, his party, and his country to forge and fight for a coherent legislative agenda — which is to say, to do the hard work of being president. Signing a series of shoddy, shallow, and largely symbolic executive orders will not get the job done.
Get to work, Mr. President. You do not have all the time in the world.