Trump deems houses of worship “essential” and may order their reopening if governors don’t act soon
Meanwhile, 1200 California pastors plan to defy Gov. Newsom’s lockdown order and have service on May 31
As I was making plans with my husband for Memorial Day weekend, my husband asked me how long it had been since I had gone to Mass.
We had just started the season of Lent when the California’s Governor Gavin Newsom mandated a coronavirus-caused lockdown of the state. Little did I realize how much I was giving up for Lent this year and that it would include Easter service.
There is more and more evidence that coronavirus cases are not “spiking” after states like Florida and Georgia reopen. Additionally, there are clear indications that the infection models were deeply flawed and that the “consensus” about how coronavirus infected people was wrong.
Many states are reopening slowly, however places of worship have not been deemed “essential” enough to make the cut for the early phases of the reopening. As a result, Americans across the country are clamoring to return to in-person faith services instead of making do with Zoom and YouTube broadcasts…or having Catholic priests using squirt guns for Holy Water blessings.
Now President Donald Trump is demanding that governors reopen churches, synagogues and mosques immediately, deeming them “essential.” Trump suggests he will “override” state leaders’ restrictions if they do not do so by the weekend.
The surprise announcement marked the president’s latest attempt to ramp up the political stakes surrounding the country’s coronavirus recovery efforts. He is facing a tough reelection fight against apparent Democratic nominee Joe Biden.
Trump said it was an “injustice” that some state leaders have allowed “liquor stores and abortion clinics” to stay open amid the Covid-19 pandemic while closing houses of worship.
“It’s not right,” Trump said. “I’m calling houses of worship essential.”
“If there’s any question, they’re going to have to call me, but they’re not going to be successful in that call,” Trump said of state leaders.
The Centers for Disease Control and Prevention have developed guidelines specific to places of worship.
Faith leaders will need to make sure their churches remain safe when they welcome congregants, the president said, adding that the Centers for Disease Control and Prevention is issuing guidance for houses of worship to follow so they can reopen safely.
“They love their congregations. They love their people. They don’t want anything bad to happen to them or to anybody else,” Trump said. “The governors need to do the right thing and allow these very important essential places of faith to open right now, for this weekend. If they don’t do it, I will override the governors.”
It’s unclear what authority Trump has to overrule governors’ emergency orders.
Dr. Deborah Birx, White House Coronavirus Task Force coordinator, said houses of worship in places with recent outbreaks of the coronavirus might need to wait a week or two, but that services can be held safely.
“There is a way to social distance … in places of worship,” Birx said.
Trump may be getting ahead of the curve with this move. For example, in California, more than 1,200 pastors say they will resume in-person services on May 31 in defiance of Gov. Gavin Newsom’s stay-at-home order.
Newsom has gradually allowed some businesses to reopen as the state’s number of virus-related hospitalizations has flattened. But churches are still banned, along with hair salons and sporting events. Newsom said Monday churches could reopen in weeks, not months.
But many churches are tired of waiting. Wednesday, a lawyer representing a church in Lodi that has sued Newsom said more than 1,200 pastors have signed a “declaration of essentiality” that announces their plan to reopen on May 31 while observing physical distancing and other precautions.
Attorney Robert Tyler said some pastors represent multiple churches. He expects as many as 3,000 churches across California could have in-person services on May 31.
“This letter was not sent for the purposes of asking for permission,” he said.
And while many pastors are making plans for social-distance-style services, some constitutional scholars question whether Trump can make this move.
[University of Nevada – Las Vegas] history Professor Michael Green says the president doesn’t have the authority to override governors.
“The 10th amendment says if the rights are not reserved to the federal government they’ll belong to the states, the basic idea of federalism,” he said. “Well if the governors have issued these orders where in the constitution does it say the president can them override them. and it does not appear in the constitution that it says that.”
While it is good to see that university scholars do appreciate the 10th Amendment, it is also clear that the curve is flattened, hospitals have not been overwhelmed, and that Americans can act responsibly to reopen fully — churches included.
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Comments
Democrats will be stunned to learn there is a 10th Amendment that says what it says. I guess it is a “break glass in an emergency” situation.
They will far more stunned to learn that there is a 14th Amendment that affixes the Bill of Rights rights above any State law, subject to the reasonable application of the law doctrine.
Have the DEMS called places of worship domestic terrorists yet?
Hillary Clinton Calls Michigan Lockdown Protests ‘Domestic Terrorism’
https://pjmedia.com/news-and-politics/rick-moran/2020/05/16/hillary-clinton-calls-michigan-lock-down-protests-domestic-terrorism-n398162
He can’t override the governors or order anything reopened. He’s doing a good job on this whole thing, as good as any president could possibly have done, but when he says things like this he just makes a fool of himself. He is not a king. He’s not in control. The governors don’t work for him, and are not subject to his orders. And for some reason he doesn’t seem to understand that. How hard can it be to stick to his lane, where he is performing so well, and let the governors fail in their lanes?
True. It would have been far easier to simply say that he will instruct the DOJ to commence a civil rights action. Trump Speak is often imprecise.
Yes, that it can do, if it can identify a specific federal law that the governors are violating (which is easy to do in some cases, but not in the general case).
I think that closing churches is just about as specific as the Jim Crow laws that Einsenhower activated the National Guard to overcome.
No, it isn’t. States can close churches so long as they also close every comparable establishment. That’s why these lawsuits are only coming up where religious gatherings are being treated worse than comparable gatherings.
They constitutionally can’t be treating the churches essentially different and worse than everyone else…
Yes, that is exactly true. But not every state’s orders have done so.
Milhouse, why are you resorting to the weak sauce ‘not every …” argument libs like to use? Obviously we aren’t talking about the people who aren’t doing it …
But that is exactly what we are talking about. Trump claimed that he would order the governors to allow houses of worship to open, even if they are being treated exactly the same as similarly situated non-religious establishments. Not only can’t he order governors to do anything, but those states that are not discriminating against religion are not vulnerable to DOJ lawsuits either. Only those few who are discriminating can and should be forced to stop.
Actually that is not clear. When Governors behave like tyrants the Federal Government is empowered to act.
Madam Pelosi chooses not to convene.
The Republican Guaranty clause has nothing to do with this. It’s about the form of government and nothing else. (It’s also not justiciable. During the Rhode Island rebellion of the 1840s the rebels sued to demand that the president enforce this clause and send in the army to support them. The Supreme Court ruled that it could not get involved, and it was up to the president and congress what to do about it, and if they chose to do nothing there was nothing any court could do about it.)
You mean – I do not believe .. “The Republican Guaranty clause has nothing to do with this…” It will be POTUS that makes the definitive determination.
No, it won’t. He has no authority to override the states on this, and citing the Republican Guarantee clause would just make more of a fool of him than he’s already done. It simply has no connection to the subject. The bottom line is that if he gives a governor an order the governor should and will refuse it, and there will be nothing he can do about it.
Once again it is your personal puerile opinion that President of the United States charged by the Constitution with guaranteeing each State a Republican form of Government has no authority to override a Governor with no authority to deny religious freedom.
Thankfully these decisions rest with POTUS and not with you.
No, it is not my opinion, any more than it’s “my opinion” that the foreign emoluments clause doesn’t give him such a power, or that neither do the religious test clause, the congressional qualifications clause, or the treason clause. It is simply an obvious and undisputed fact that none of those clauses have any conceivable connection to such a power. The language of all these clauses is plain, and means exactly what it says. A republican form of government has nothing to do with religious freedom.
And no, the decision does NOT rest with POTUS. He does not get to decide his own authority. Any order he purports to give under such a non-existent authority is illegal and must be ignored.
President Trump has every right to say this and use action to accomplish it!
Think about Little Rock and integration of the schools
Freedom of religion is our BASIC right and he can send in the Feds to make sure we can worship!
No, he can’t. Little Rock was about enforcing a federal court order.
If you’re a Christian in California reading this, remember how Daniel defied Darius’s decree and kept his faith. You are beholden to a higher covenant, not the capricious laws of mere flesh and blood.
“Do not be afraid of those who kill the body but cannot kill the soul. Rather, be afraid of the One who can destroy both soul and body in hell.”
Matthew 10:28
You will go back to church when Gavin Newsom allows you to go back and not day sooner.
In LA you probably will never be allowed to return to your church.
No, Actuarian is right, you can go back now. You just have to take the risk that Newsom will throw you to the mountain lions.
Meanwhile, here in NYC, hundreds of small businesses are opening illegally and daring the governor and mayor to do something about it.
They’ve hired Ron Coleman (I assume the same Ron Coleman of Likelihood of Confusion, who represents Legal Insurrection) to represent any of them who are ticketed. He’s instructed them to follow sensible safety rules, and to be courteous to the police but not to discuss anything with them; just accept the ticket, if one is given, and send it to him to handle.
Good for them. Now the small business owners in Michigan and a few other states need to follow suit. This individual rebellion is all well and good, but tyrants find them easy to counter. Now a state wide rebellion of all small business acting in concert is far, far more difficult to deal with. Too bad that the Chamber of Commerce is on the side of big government.
Maybe he plans to show them the Constitution, specifically the Bill of Rights . . . the governors are not kings either and may need to be reminded of such. Did they Justice Department not send them a “shot across the bow” last week?
It’s not up to him to show them the constitution. He has no authority whatsoever over them.
The DOJ said that if they violate the civil rights laws it will sue them in court. That’s different. That it can do. The federal courts will then decide what orders to give the governors.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Seems pretty clear to me: “or prohibiting the free exercise thereof”
Isn’t that exactly what the governments are doing? (14th amendment makes it apply to states, too). I didn’t see an exception for pandemics. How can an executive order trump an unalienable right? Trump would be defending the constitution by “trumping” the governors.
Ty slagothar.. that is what I was thinking about..
And while many pastors are making plans for social-distance-style services, some constitutional scholars question whether Trump can make this move.
It doesn’t take a constitutional scholar to believe that those governors had no right to restrict churches, while box stores, and liquor stores were ok… Yes,, I understand the President is limited,, but the governors should have been.
One explanation,, on a tv show.. was that the religious leaders are generally nice people, and try to cooperate.
Nice only goes so far.
Even if they are violating the constitution (and not all of them are), Trump has no authority to do anything about it. He can order the DOJ to sue them in federal court; if a court issues an order to a governor and the governor refuses to comply, then Trump can enforce the order.
In any case, the free exercise clause doesn’t forbid laws that treat churches no worse than comparable establishments. If all such gatherings are forbidden, no exception for churches is required (unless the state has a RFRA that requires one, and even those allow restrictions that pass strict scrutiny).
Trump speak isn’t to be take literally. The way PDJT speaks informs his desired direction not a precise map.
On the other hand besides the DoJ involvement in specific cases within specific states there is the fact that these Governors all sought a Federal disaster/emergency designation.
They did so to access Federal funds from FEMA etc. I would guess that within the acceptance of a Federal Disaster/emergency designation that the administration has more latitude than we realize.
I am certainly not going to spend my time researching the issue but will gladly take advice from those who want to do so to disagree. I am not certain that the administration is as constrained as we might believe at first glance.
https://www.gracechurch.org/news/posts/1956
Ninth Circuit Court Rules Against the President and Churches
ruled 2-1 in favor of California Governor Newsom’s statewide stay-at-home order, rejecting an emergency motion to allow for religious services to proceed.
———————
“We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact,’” they wrote.
——————–
Kind of like Pirates of the Caribbean, it’s more like a guideline rather than the supreme law of the land.
Good Ol’ Ninth Circuit for ya ?
It seems to me that the President has the authority to enforce the provisions of the Constitution, in this instance the 1st Amendment right to worship and assembly. Ike sent the 101AB to Little Rock to enforce provisions of the Constitution. If there be a superior law to the Constitution, let them point to it.
Let’s face it. If liquor stores and gay dance bars can be deemed “essential”, the whole thing becomes a gigantic joke.
I didn’t see your comment before I posted. You are absolutely right about Presidential powers and the example of Little Rock
The 9th circuit is still a chess pool of idiots despite recent changes to the better
Always a toss up as what 3 you will get to decide.
Pretty sure their logic in case of military conflict with “China” would be, America will not engage because lives will be lost, we will put down our weapons and surrender…. thank you very much, but please, can we still eat arugula?
No, he doesn’t. Little Rock was about enforcing a federal court order.
Milhouse,
You may be correct but you may not. Why? The folks in Little Rock refused to abide by the federal court order. In doing so they violated our constitutional norms. IKE sent about 1000 Soldiers from the 101st and federalized the Arkansas NG to reinforce the constitutional norm.
Each branch of our federal government is coequal. To say that the administration could not do something similar to enforce our constitutional norms absent a court order doesn’t make sense. That would mean that the administration couldn’t act on its behalf or on behalf of congress. You seem to be restricting the ability of the executive to act only in the case of a court order.
IMO, it seems as likely that in a situation in which a state is acting contrary to not only the constitutional norms but also exceeding it’s authority in circumstances where case law precedent should have constrained their actions, that the administration could act.
Alternatively, as a thought exercise; if citizens in a state actively ignore the state government that governor could call up the NG to enforce it’s dictate. The President could likewise act to federalize the NG to preclude the governor’s action.
This is kind of unsettled. Whiskey rebellion was some time ago.
The president has no authority to “reinforce the constitutional norm”. The president is not the boss of state governors. He is the president of the union, but he is not the president of any state. The states are not subdivisions of the union, as cities and counties are subdivisions of states. So your analogy doesn’t work.
If a state law violates the constitution, the recourse is for someone who is directly affected to sue the state and get that law overturned. The president can’t step in directly. He can order the DOJ to bring suit only if there’s a federal law that’s being violated. It’s then up to the court to say whether the law is indeed being violated, and if so to order the state to stop.
The point here is to preserve federalism, which is more important than any one issue that may come up from time to time.
Milhouse,
My point was that the federal executive could federalize the state NG to thwart the governor of a particular state. That has occurred multiple times.
I would submit that the primary job of every constitutional officer is to support and defend the constitution. When a state government acts to defy both the written word of the constitution and the relevant case law of that issue that the state is acting in opposition to the constitutional order.
Under those narrow circumstances I am not convinced that the executive is barred from action until a mere district court enters an order. That would be to place the executive at the convenience of an inferior article 3 court.
Can PDJT send in the 82nd to make a state do what he wants? No
The better question is can the administration act independently of the judicial branch to ensure that a state government isn’t unconstitutionally restricting the rights of it’s citizens? I believe it could in a number of ways, all well short of of the administration invoking the insurrection act. Though, if the administration did decide to invoke those powers they could then use the 82nd. to restore constitutional order.
Let the governors send their state police to as many churches as they can. You know there will be a dozen or two phones videoing the entire incident.
Can you imagine the sight of a mom being dragged, handcuffed, to a cruiser while her small children cry desperately after her? Yeah, that’ll look good. Or maybe a half-dozen highly agitated Sunday School ladies swinging their purses at the po-po? That’ll look good, too. We won’t even think about about a priest being arrested and being pulled out of Mass and chucked into a paddy wagon.
This can be as dramatic as the gov’s want it to be.
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“Can you imagine the sight of a mom being dragged, handcuffed, to a cruiser while her small children cry desperately after her? Yeah, that’ll look good. Or maybe a half-dozen highly agitated Sunday School ladies swinging their purses at the po-po? That’ll look good, too.”
If the media covers such events (which is not guaranteed) if will be slanted to make the Christians look like terrorists. This is standard operating procedure for the Joseph Goebbels media.
That water gun just might become replaced by a real gun, aimed in another direction.
In Minnesota the Catholic and Lutheran churches are going to open on May 26, regardless of what the governor thinks about it. Until now they’ve been dutifully complying with the governor’s orders; that ends on Tuesday, unless he sees reason and negotiates with them.
Here in NY we’re now allowed up to ten in the synagogue. My synagogue is more or less complying; this Saturday I think we had 13, and we weren’t about to kick anyone out. We wore masks, sat at least 10 feet apart, and handled the Torah scroll with gloves. But on weekday mornings, when my synagogue can’t hold services because we can’t get 10 men together, I’ve been taking a bus to attend one in a different neighborhood that is also taking reasonable precautions but is clearly defying the governor’s orders. This morning I prayed with a group that numbered about 30, all sitting well apart; nobody wore masks, but when I read the Torah I put one on, since there’s evidence that loud singing does project the virus to those in the immediate vicinity and can infect them.
They should lose their Pro-Choice religion/ethics/laws. However, don’t override a State’s assessment of risk and management practices. Do offer a Planned Pathogen (PP) protocol to abort and mitigate progress of the virus.
No, it won’t. He has no authority to override the states on this,
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lord, millhouse–he need look no further than his oath–regardless of who is in the whitehouse, they have sworn to preserve, protect and defend the constitution–it is not merely a right, it is a duty
many public servants have referenced their oaths as justification for their actions/inactions through this and, in the main, they are patriots–the ” permission ” of the courts is not required for a response to clear violations of our rights–many violations are plain, ” in your face ” limitations of our freedoms, whatever the “justification”
our countrymen, like you, who prefer to sit on the sidelines while our freedoms are trampled/eroded and pontificate about why ” this can’t be done ” or ” he/she lacks the authority to do this/that ” ad ennui need to open your eyes to the persistent and deliberate efforts of these state-level despots attempting to rule with their little fiefdoms with impunity and near-total disregard for our individual rights
His duty is to obey the constitution, which DOES NOT GIVE HIM the authority he claims. He is not the governors’ boss, and even if he thinks what they’re doing is wrong, even if he thinks what they’re doing is unconstitutional, he has no authority to order them to stop. They are not his subordinates and don’t take orders from him. Nor do state or local police take orders from him. The most he can do is sue them.
Milhouse,
The governors of the States are not subordinate to the president, nor can the civilian bureaucratic apparatus of a state be commanded or commandeered by the federal government.
That said, there are a number of ways that the federal executive can act without resorting to a lawsuit.
1. Simply invoke the insurrection act, that would be the choice of many. I think that a bridge too far at present.
2. Agree with the lockdown oriented governors that the conditions present in their state requires extraordinary measures. Such as,
A. closing down air, sea and land travel from that state.
B. Institute a quarantine level inspection regime for all persons entering or departing that lockdown state
3. Expanded audits of federal programs to discourage fraud, waste and abuse as in Washington State unemployment system.
Either these Governors are correct that they have an extraordinary situation that validates their actions or they don’t. If they do, then the federal government likewise can rely upon that for their acts.
At any rate, lots of room for creative action outside the courts.
Lincoln used the Insurrection Act, but those other ideas of yours are interesting and would certainly make the recalcitrant governors squirm.